TaxTMI 
TaxTMI 
1987 (3) TMI 221
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....ff and tear-down vial seals were seized under the belief that they are classifiable under TI 42 CET and not under TI 68 CET, action was initiated by issue of notice dated 6-6-1985. It was alleged that as these seals had been manufactured and cleared without payment of duty under TI 42 CET the appellants had contravened various rules and had made themselves liable for penalty, confiscation and demand of duty. After the appellants had sent their reply an adjudication was held by the Collector of Central Excise, Bombay-11 (Now Bombay-III on reorganisation) in which he held that the vial seals were classifiable as pilfer proof caps under TI 42 CET and the charges against the appellants were therefore made out. But he restricted the demand to the normal period under Section 11-A of the Central Excises and Salt Act. It is against the said order of the Collector dated 24-12-1985 that the present appeal has been preferred. 3. We have heared Shri V. Lakshmikumaran, Advocate for the appellants and Shri G.V. Naik, JCDR for the department. 4. Samples drawn of the products in question as manufactured by the appellants as also by another manufacturer were also produced for our perusal dur....
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....any other material". 8. Before the Collector as well as before us the appellants have relied on the definition of pilfer proof caps in the Glossary of terms relating to metal containers trade published by the Indian Standard Institution (IS:1394-1973). It will be convenient at this stage to extract the definition of not merely pilfer proof caps but other definitions also therein. They are :- Bung - A fitting used to seal a sheet-metal container, usually a metal plug provided with threads to fit a screwed flange. Cap - A light gauge metal or plastic cover used to seal the neck or opening of a container. Inner Seal - Refers to paper, foil or cork used to line the inside of a general line cap closure. Lid - The detachable closure component defined precisely by qualification, for example, slip lid, screw, cap, etc. Pilfer proof caps - Screwed on closure with integral pilfer proof arrangements. Plug - A metal stamping fitted into a neckor orifice. Screw Cap - A screw-on (rolled thread) cap incorporating a sealing wad or liner and used in conjunction with an appropriate screwed neck. Washer - A disk or cork or other soft material inserted in the cap to ensure leak-proof sea....
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....dered. On the perusal of the judgment we find that this aspect of the case, that seals would not be caps at all, had not been raised by the assessee and had therefore not been considered by the Tribunal. So far as the case of Rekha Industries it is clear that the product concerned in that case was not the product in issue before us. That case dealt with cap-seals used for sealing of drums and not vial seals. The definition of the cap seal in IS: 1394-1973 is as follows :- "Capseal (Drums) - A light gauge metal closure component fitted over the primary seal (for example, inner plug, lever cap or cork shives); may be paper lined on the underside, usually applied by rolling-on with special tool". No doubt reference has been made in that judgment to the definition of pilfer proof caps in IS:1394-1973 but it has been observed that in the absence of any definition of the terms pilfer proof cap in the tariff entry the entry has to be given widest meaning particularly in the context of the qualifying word "all sorts". But in the light of the discussion earlier, especially that relating to the fact that a seal would never be a cap, it appears to us that the ratio of the said decision, whi....
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....r would relate only to powers exercisable , by any other Officer under the Rules and not under the Act. Shri Naik contends that it is a well recognised principle of administrative law that what a subordinate could do his superior could always do. He therefore contends that what an Assistant Collector could do under the provisions of the Act the Collector as his superior could also do. We are unable to accept this proposition in the absence of any provision in the Act itself, as distinguished from the provision in the Rules, to this effect. Therefore, we are convinced that so far as demand for duty is concerned the Collector had no power in the instant case. 15.  Shri Naik in this connection refers to the fact that the demand had been raised under Rule 9(2) also. But we are satisfied that no demand could have been raised under Rule 9(2) since the manufacture and clearances were in pursuance of an earlier order of the Assistant Collector in terms of which the goods in question were classifiable under TI 68 CET and under that classification the goods were exempt since the exemption limit of clearances had not been crossed. In the absence of any suppression or mis-statement of fa....