Lakhanpal National Ltd. Baroda vs Collector Of Central Excise, Baroda

1. The Assistant Collector of Central Excise, Baroda, clubbed the two items described as calots and pellets of zinc together under Tariff Items 26B(1) and 26B(2a). The Collector of Central Excise (Appeals) reversed this finding holding that they were not synonymous and the decision of the Assistant Collector suffered from want of reasons. He took the view that classification of pellets could not be taken as of calots under Tariff Item 26B(2a). He, therefore, set aside the order of the Assistant Collector and held that the goods in question could not be assessed to duty under Tariff Item 26B(2a). Against the said order the department went in appeal to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) pointing out that calots were a distinct item which attracted duty under Tariff Item 26B(2a) and hence the appellant was liable to pay duty under that head. The Tribunal came to the conclusion that the goods in dispute were not pellets and, therefore, they were calots chargeable to duty under Tariff Item 26B(2a). It is this finding of the tribunal which is in dispute.

2. It may at this stage be mentioned that when the appellant submitted a classification list they stated that the goods in question did not attract any excise duty whatsoever and they were neither calots nor pellets and were intermediate products not marketable but used for captive consumption only. Hence, it was contended that the goods in question were not classifiable under either Tariff Item 26B(1) or 26B(2a). In this view that the tribunal took the tribunal held that the appellant was not liable to excise duty under Tariff Item 26B(2a). The Tribunal also came to the conclusion that it was true that the calots were not marketable and were used by the appellants for captive consumption only.

3. It may be noticed that the appellant was paying excise duty on the intermediate product under Tariff Item 26B(1) under protest. That was because it was the contention of the appellant that the goods manufactured by them at the intermediate stage did not fall within the description of pellets or calots and, therefore, the same was not taxable at all. The tribunal after stating what was meant by pellets from the dictionaries came to the conclusion that the intermediate product was not pellets. It, therefore, took the view that the said product must be accepted as calots and held the same liable to excise duty under Tariff Item 26B(2a). The tribunal made no effort to look to the dictionary meaning of the term calots nor did it try to ascertain from the evidence placed before it whether the intermediate product was known in the commercial world as calots. Merely because it came to the conclusion that it did not fall within the term pellets it took it that it fell within the expression calots used in Tariff Item 26B(2a) and accordingly made the same liable to tax. There was no material whatsoever placed before the tribunal to come to the conclusion that the intermediate product answers the description of calots as found in the dictionary where the same is described as a close fitting cap without visor or brim, a woman's or child's cap, an ice cap, etc. The intermediary product does not answer that description. The tribunal was, therefore, clearly wrong in jumping to the conclusion that the intermediary products were calots merely because it came to the conclusion that it was not pellets. The Revenue has not come in appeal against that part of the order nor has it contended before us that it is pellet. We are, therefore, of the opinion that in the instant case the department had failed to show that the intermediate product answers the description of calot and was, therefore, liable to excise duty under Tariff Item 26B(2a).

4. In this view of the matter we allow this appeal, set aside the order of the tribunal and hold that the intermediate product manufactured by the appellant did not fall within Tariff Item 26B(2a). The appeal will stand allowed accordingly with no order as to costs. In the view that we take we need not go into the other questions.