Sarda Plywood Industries Ltd. and Another v. Union of India and Ors.
1993-01-06
R.K.MANISANA SINGH
body1993
DigiLaw.ai
The facts giving rise to this petition under Article 226 of the Constitution of India, in brief, are as follows. The petitioner company carries on business, inter alia, of manufacturing of plywood, block board, etc. Under Glossary of Terms applicable to Timber Technology and Utilisation (Second Revision) published by Indian Standard Institution, 'block board' means : "A Board having a core made up of strips of wood, each not exceeding 25 mm in width, laid separately or glued or otherwise joined to form a slab, which is glued between two or more outer veneers with the direction of the grain of the core blocks running at right angles to that of the adjacent outer veneers," emphasis added) In view of the ISI specification, there are three types of block boards. The petitioner manufactures block board composing of a core made up of strips of wood laid separately to form a slab. Such block board is commercially known as veneered timber board. For the purpose of payment of duty the block board in question is to be classified under heading 44.10 (sub-heading 4410.90) of the Schedule to the Central Excise Tariff Act, 1985 (for short the Tariff Schedule). But the Superintendent of Customs and Central Excise, Naharkatia Range issued the following notices to the petitioner company-notice dated 4.3.92 to submit classification list and the price list of block board and other goads falling, inter alia, under sub-heading 4408.90 wef 1.3..92, notices dated 27.3.92 and 6.4.92 to clear the block board on payment of duty under sub-heading 4408.90 wef 1.3.92; and notice dated 30.4.92 enquiring whether the petitioner had paid duties on the block board by classifying it under the sub-heading 4408.90. Thereafter, the Assistant Collector of Customs and Central Excise, Dibrugarh issued a notice dated 1.5.92 to show cause on or before 22.5.92 as to why the block board should not be classified under si b-heading 4410,90 of the Tariff Schedule. Hence this petition challenging the notices and classification of the block board under heading 44.08 of the Tariff Schedule. 2. The question which arises for consideration is whether the block board manufactured by the petitioner will fall under heading 44.08 or 44.10 of the Tariff Schedule. 3. As already stated, the petitioner company manufactures block board composing of a core made up of strips of wood laid separately to from a slab.
2. The question which arises for consideration is whether the block board manufactured by the petitioner will fall under heading 44.08 or 44.10 of the Tariff Schedule. 3. As already stated, the petitioner company manufactures block board composing of a core made up of strips of wood laid separately to from a slab. A sample of block board manufactured by the petitioner company has been placed on records. The sample indicates that the strips of wood, the parts which compose the whole core of the block board, are not joined with glue nor joined by mechanical device. The strips of wood are placed or laid separately close or near enough together to make up the whole core to form a slab. 4. Heading 44.08 of the Tariff Schedule reads : “44.08 - Plywood, veneered panels and similar laminated wood. For the purpose of heading No 44.08, the expression 'similar laminated wood' includes Block Board, laminboard and batten board, in which the core is thick and composed of blocks, laths or battens of wood glued together and surfaced with the outer plies and also panels in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibre board, wood waste glued together, asbestos or cork". For the words 'glued together', the words 'glued or otherwise joined together' were substituted by the Finance Act, 1992, which came into force on and from 1.3.92. 5. Shri MA Lahoty, the learned counsel for the petitioner, has contended that the words 'or otherwise' must be construed by applying rule of ejusdem generis in view of ISI specification referred to above and trade meaning of block board, that is to say, the words 'or otherwise' must mean at least analogous to the word 'glue'. Therefore, the strips of wood making up the core must be joined with glue or by other mechanical devic or means for classifying the block b >ard under the heading 44.08 (sub-heading 4408.90). The present is a case where the strips of wood forming the core of the block board have not been joined with glue nor joined together by mechanical device or means, and as such, the block board in question is to be classified under the tariff heading 44.10 (sub-heading 4410.90), not under heading 44.08 (sub-heading 4408.90).
The present is a case where the strips of wood forming the core of the block board have not been joined with glue nor joined together by mechanical device or means, and as such, the block board in question is to be classified under the tariff heading 44.10 (sub-heading 4410.90), not under heading 44.08 (sub-heading 4408.90). In support of his contention, learned counsel has referred me to a decision of the Supreme Court reported as Collector of CE, Ran ur vs. Krishna Carbon Paper Co., 1988 (37) FXT 480 (SC). In that case, it has been observed that, where no definition is provided in the statute itself for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe, and the correct guide, it appears in such a case, is the context and the trade meaning; that, where a word has a scientific or technical meaning and also an ordinary meaning, the ordinary meaning should be preferred unless contrary intention is clearly expressed by the legislature; and that, where no trade evidence is available but ISI specifications are available, they should relied upon for interpreting a tariff entry. 6. In Skinner & Co vs. Shew & Co, (1893) 1 CH 413(K) it has been held : 'The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislature requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning.” 7. In Kochuni vs. State of Madras & Kerala, AIR 1960 SC Supreme Court has stated : "The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of same kind as those specified.
In Kochuni vs. State of Madras & Kerala, AIR 1960 SC Supreme Court has stated : "The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an unviolable rule of law, but is only permissible inference in the absence of an indication of the contrary." 7. The above discussions made it clear that the rule of ejusdem generis is not an inviolable rule; but, only a permissible inference in the absence of contrary intention expressed by the legislature. 8. Coming to the case on hand, the word 'join' in Corpus Juris Secundum, it is stated thus : "Join - to connect, to unite, to combine or unite in time, effort, or action; to come together; to come together so as to be united and connected; to act together; to enter into association or alliance; to form a union." Considering the meaning of the word 'join' given above, if the strips of Wood, which are the part of the whole core, are laid close or near enough together, it will come within the meaning of the words 'or otherwise joined together' as the strips of the wood would act together to make up the core for forming a slab although the strips of wood are not joined with glue or by mechanical device or means. The legislature has, therefore, used the words 'or otherwise joined together' apparently intending to cover the block board, the core of which is made up of strips of wood (the parts of the whold core) placed close or near enough together to form a slab although they are laid separately without joining them with glue or by mechanical device, and, as such, a block board will fall under heading 44.08 (sub-heading 4408.90) of the Tariff Schedule. In the present case, the meaning of block board' is defined and, therefore ISI specification or trade meaning cannot be considered. If the trade meaning or ISI classification is taken taken into consideration, it will amount to cutting down the intendment of the provisions of the statute.
In the present case, the meaning of block board' is defined and, therefore ISI specification or trade meaning cannot be considered. If the trade meaning or ISI classification is taken taken into consideration, it will amount to cutting down the intendment of the provisions of the statute. For these reasons, the decision of the Supreme Court referred to above is not applicable to the present case, and, as such, the couteention of the learned counsel for the petitioner cannot be accepted. 9. In the above view of the matter, the block board in question, viz, veneered block board manufactured by the petitioner company, will fall under the tariff heading 44.08 (sub-heading 4408. 90) . 10. The next contention of the learned counsel for the petitioner is that the time allowed by the Assistant Collector for replying to show cause notice was Jess than one month in violation of the instructions dated 1.9.78 issued by the Central Board of Excise and Customs requiring the authority to allow the parties one month's time for replying to show cause notice in Central Excise cases and, therefore, the impugned notice is quashable. The learned counsel has relied on a decision reported as Rajaram Corn Products vs. Collector of CE, 1990 (45) ELT 544 , to support his submissions. 11. The notice dated 1.5.92 issued by the Assistant Collector to show cause as to why the block board in question should not be classified under sub-heading 4408.90 of the Tariff Schedule indicates that the reply to show cause notice was to be filed on or before 22.5. 92. Therefore, the time allowed for replying to show cause notice was less than a month. It is not disputed that, under the instructions dated 1.9.78 referred to above, the proper authority is to allow the parties one month's time to reply to show cause notice in Central Excise cases. This being the position, the time allowed to reply to show cause notice was in violation of the instructions. The question then is, whether the notice is quashable for violation of the instructions ? It is not the case of the petitioner that the petitioner was prevented from making an effective reply due to shortage of time. The petitioner did not make any complaint to the authority concerned nor did the petitioner ask for time. Therefore, the challenge is liable to be rejected.
It is not the case of the petitioner that the petitioner was prevented from making an effective reply due to shortage of time. The petitioner did not make any complaint to the authority concerned nor did the petitioner ask for time. Therefore, the challenge is liable to be rejected. In Rajaram Corn Products vs.Collector of CE(supra) the Collector through his show cause notice granted only 10 day's time to the petitioner therein to file reply. Even on the express request of the petitioner's counsel time was not extended. In the context of that case, it was held that show cause notice allowing only 10 days' time for reply and the consequential order were vitiated for flagrant violation, of the instructions. This decision does not help the petitioner as the fact position in the present case is distinguishable from that in Rajaram Corn Products case (supra). Apart from the above discussions, the point for determination is under which of the headings of the Tariff Schedule the block board in question is to be classified. In view of the conclusion above that the block board in question falls under heading 44.08 (sub heading 4408.90) after hearing the parties the requirement of the giving of show cause notice by the proper authority has lost its importance. 12. In the result, the petition is dismissed. Interim order stands vacated. No costs.