2008 (7) TMI 361

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....hird respondent had approved such classification, subsequently show-cause notices were issued for the period from November 1992 to May 1994, to the writ petitioner/company as to why their products M.S. Bends, Cap Pieces, Specials etc. should not be classified under Chapter Heading 7307 of the Central Excise Tariff Act, attracting the Central Excise Duty at 15%, as their products are utilised for connecting PSC/MS/CI/AC pipes to make positive water tight joints and are actually pre-fittings as evidenced in the contract between the first respondent company and the TWAD Board, wherein the requirement is only for welded mild steel fittings and specials of various sizes and the benefit under notification No.175/88 as amended should not be denied to them since the Chapter Sub-heading No. 7307 of the Central Excise Tariff Act is not covered by the exemption notification. The first respondent/company was also asked to show-cause as to why the abatement claimed by them for transport charges from the contracted price should not be denied and differential duty of Rs. 28,089/- should not be demanded under Section 11A in respect of clearances for the period January to May 1994. For the show-cau....

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....of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution, but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court, the aggrieved party could move this Court under Article 136 of the Constitution." 5. This position has been clearly explained by the writ petitioner himself in para No. 4 of his affidavit filed in the writ petition itself, narrating the reason for them to approach the High Court. Though in Ground No. 5 of the appeal grounds, the Revenue has again raked up this issue of maintainability, of late, in Ground No.15, they have also admitted that 'judicial review' may be possible against the order of CEGAT. In view of the above judgment of the Constitutional Bench judgment of the Honourable Apex Court and in view of the altered stand of the Revenue and further taking into consideration the fact that....

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....of which exceeds 406.4 mm. of iron or steel           7305.10 - Of iron 16%   7305.90 - Other 16% 73.07 7307.00 Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel 16% 9. While on the part of the Revenue, they claim that the goods in question are tube or pipe fittings, being the couplings etc. and thus falling under sub-heading 7307.00, on the part of the writ petitioner/Company, they would submit that they are only tubes and pipes of iron, falling within the sub-heading 7305.10. The learned single Judge has held that they are only tubes and pipes of iron, since the process of welding is involved. In this process, the learned single Judge has relied on the judgment of the Honourable Apex Court in Bharat Forge and Press Industries Pvt. Ltd. v. CCE [1990 (45) E.L.T. 525 (S.C.)]. In this judgment, the Honourable Apex Court while dealing with the erstwhile Tariff item 26AA(iv), has held that 'pipe fittings are to be treated as pipes and tubes under Tariff Item 26AA(iv).' 10. In the said judgment, the Honourable Apex Court has relied on the word 'all sorts' in the tariff entry and that while the entries in the....

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....2005) 2 SCC 460)]. Therefore, for a better understanding of the sub-heading 73.07, we extract hereunder the explanatory notes for HSN for 73.07, which reads as follows: "This heading covers fittings of iron or steel, mainly used for connecting the bores of two tubes together, or for connecting a tube to some other apparatus, or for closing the tube aperture. This heading does not however cover articles used for installing pipes and tubes but which do not form an integral part of the bore (e.g. Hangers, stays and similar supports which merely fix or support the tubes and pipes on walls, clamping or tightening bands or collars (hose clips) used for clamping flexible tubing or hose to rigid piping, taps, connecting pieces, etc.) (heading 73.25 or 73.26). The connection is obtained: - by screwing, when using cast iron or steel threaded fittings; - or by welding, when using butt-welding or socket-welding steel fittings. In the case of butt-welding, the ends of the fittings and of the tubes are square cut or chamfered; - or by contact, when using removable steel fittings. This heading therefore includes flat flanges and flanges with forged collars, elbows and bends and return bends....