Customs, Excise and Gold Tribunal - Delhi
Lamps, Caps And Filament Ltd. vs Collector Of Customs on 22 August, 1986
Equivalent citations: 1986(10)ECC55, 1986ECR420(TRI.-DELHI), 1987(27)ELT93(TRI-DEL)
ORDER
K.L. Rekhi, Member
1. By his consolidated order-in-appeal impugned in Appeal No. C-160/78-B2, the Appellate Collector had disposed of 12 appeals of the appellants. The appellants had filed only one revision application against it before the Central Government as per the practice then in force. However, on the learned representative of the department pointing out the need to file 11 supplementary appeals and our direction to the appellants to do so, the appellants have since done the needful. We have condoned the delay in filing the supplementary appeals. Appeal No. C-833/78-B2 appears to be a duplicate of Appeal No. C-160/78-B2. However, Appeal No. C-265/80-B2 is a separate one and arises out of a different order-in-appeal.
2. The 14 appeals now under consideration involve a common point at issue and relate to the same appellants. They are, therefore, being disposed of by this common order.
3. The appellants imported Tungsten Filament Wire, as per the description given in the import invoices and the bills of entry in 13 out of 14 cases. Tungsten Filament Wire is that hair-thin wire which glows inside the incandescent bulb and provides light when the electric current is switched on. It is made of high purity tungsten metal. In the remaining one case, the description of the imported goods given is Tungsten Rod/Wire. The department has assessed the goods as a resistance wire under item 73(23) of the erstwhile Indian Customs Tariff. The appellants stated that their case all along had been that they should be assessed as tungsten virgin metal under item 70(7) ICT or, in the alternative, under the residuary entry for metal manufactures under item 70(1) ICT. The learned representative of the department pointed out that at the original stage the appellants' claim was only for item 70(1) and not 70(7). At this, the appellants dropped item 70(7) and pressed their claim only under item 70(1) ICT. So, in short, the point of dispute before us is whether Tungsten Wire/Filament Wire fell under item 70(1) or 73(23) ICT. The rival entries read as under :
"70(1) All non-ferrous alloys and manufactures of metals and alloys not otherwise specified:
Provided that any such alloys or manufactures containing more than 97 per cent of aluminium shall be deemed to be aluminium in a crude form or aluminium manufactures, as the case may be, and dutiable as such."
"73(23) Nichrome and other electrical resistance wires and strips."
4. The appellants relied on Delhi High Court "judgment dated 31-3-1980 in Civil Writ Petition No. 710/1979 - M/s. Kalpana Industries v. Union of India and Ors.. The learned representative of the department asserted that though this was the only High Court judgment on the point at issue, yet the Tribunal was not bound to follow it because -
(1) the judgment was concerned with Tungsten wire and not Tungsten Filament Wire;
(2) certain technical aspects of the matter had not been placed before the High Court;
(3) while the judgment had quashed the classification under tariff item 73(23) on the ground that the goods were not resistance wire, it had not indicated the alternate entry applicable to the goods; and (4) the Supreme Court had admitted the department's special leave petition against the judgment and had stayed the operation of the judgment He urged that the present matters should be placed before a Larger Bench of the Tribunal because of two conflicting orders having already been passed by the Tribunal Benches, vide -
(i) order No. B-235/8-5 dated 12-4-1985 in the case of Sylvania and Laxman Ltd. which held that item 73(23) was specific and
(ii) order No. 1105/83-B dated 2-12-1983 in the case of Kalpana Industries which held that item 70(1) was applicable.
5. We have given our earnest consideration to the matter. The difference between Tungsten Wire and Tungsten Filament Wire is that the latter is a much finer wire than the former. If the relatively thicker Tungsten Wire was held not to be resistance wire by the Delhi High Court, we wonder how the hair thin Tungsten Filament Wire could be considered a resistance wire. If at all, the resistivity should go on becoming less and less with progressive decrease in the thickness of the wire.
6. The technical aspects which the learned representative of the department claimed had not been brought to Delhi High Court's notice and which he explained with the help of technical literature amount to this - that to give light the electric bulb required a wire which possessed both high melting point and resistivity, that the bulb could not emit light (glow) without heat, that heat came from the resistivity of the wire which increased manifold (from 5 to 90) in the inert atmosphere inside the bulb and that, therefore, Tungsten Filament Wire was a resistance wire answering the specific description of item 73(23). The appellants sought to rely on the opinion of an expert, Dr. G.G. Kalthod. However, since the said opinion was fresh evidence and had not been produced, much less tested, before the lower authorities, the Bench, did not permit its being taken on record. The appellants then gave a demonstration in which Tungsten Filament Wire, when connected to electric current in the ordinary atmosphere, blew up in about a second. From this, they sought to show that Tungsten Filament Wire had no resistivity to speak of outside the inert atmosphere of the bulb while Nichrome and other resistance wires contemplated in item 73(23) were those which possessed high resistivity in the ordinary atmospheric conditions, such as the heating elements. They argued that resistivity (or lack of it) of the wire should be judged in the condition in which the goods were imported and not after they had been fitted inside a vacuum bulb. They also referred to the Alloy Wires Catalogue to show that Tungsten Wire did not figure in the list of resistance wires.
7. We observe that the Delhi High Court judgment ruled out classification of Tungsten Wire as a resistance wire under item 73(23) on two considerations - (1) its very low resistivity (5.523 microhm as compared to 112 microhm of Nichrome) and (2) trade parlance. We are not impressed by the department's claim that the aforesaid technical aspects since discovered by them, and which were allegedly not placed before the High Court, should lead to a different conclusion. Even otherwise, it is not for us to sit in judgment over the findings of the Hon'ble Delhi High Court. The said judgment, we are told, is the only High Court judgment on the point and, as per the practice of this Tribunal, we. are bound to follow it. This judgment has not so far been reversed and it is, therefore, good law, notwithstanding the fact that its operation has been stayed by an interim order of the Supreme Court as between the parties. Lastly, while it is true that this judgment has not indicated the tariff entry applicable to the goods and has merely ruled out item 73(23)' for them, it is now the common case of both parties that the only other possible entry is 70(1) ICT. Item 70(7) ICT mentioned by the appellants to begin with but dropped later by them relates to virgin metal in primary form while the goods are manufactures of metal (Tungsten) and hence item 70(1) ICT relating to metal manufactures is more appropriate. No other relevant entry has been brought to our notice by either party. We also find from the opening paragraph of the Delhi High Court judgment that it was the admitted position of both parties before the said High Court that if 'Tungsten Wire did not fall under item 73(23), "it will admittedly be exigible to duty in entry 70(1)".
8. We do not consider that there is any need to refer the matter to a Larger Bench of the Tribunal. Sylvania and Laxman case proceeded on those appellants' admission therein that Tungsten Wire was a resistance wire. Consequently, there was no occasion for the Bench to go into the merits of the issue. Nor was the Delhi High Court judgment cited before the Bench in that case. In the Kalpana case, however, there was discussion on the merits of the issue as well as the Delhi High Court judgment was brought in. In the circumstances, we hold that there was no real conflict in these two judgments of the Tribunal. The Tribunal Order in Kalpana case was made by a Bench of three Members. Ours being a two-Member Bench, we should, in the normal course follow that order unless we feel that we have some reservations about that order. But since the said order follows the ratio of the Delhi High Court judgment, which is the only High Court judgment on the point at issue, the question of our having any reservations does not arise.
9. In the circumstances, we hold that item 70(1) ICT was the correct classification for Tungsten Wire/Filament Wire imported during the material period. We allow the 14 appeals accordingly with consequential relief to the appellants.