Tungsten filaments fall under Item 81.01/04 (1) of the Indian Customs Tariff Act, 1975 and are thus liable to the payment of excise duty at 60% plus surcharge payable in law.

The short question that arises for consideration in this writ petition is whether tungsten filaments are liable to import duty under Item 81.01/04 (1) or Item 85.18/27 (4) of the Indian Customs Tariff Act, 1975.

2.The petitioner, Bengal Electric Lamp Works, Ltd. Bangalore, is engaged in the manufacture of electric lamps of different sizes, shapes and specifications, the components for the manufacture of the same and is marketing such products. For the purpose of the manufacture of electric lamps the petitioner imports from abroad tungsten filaments. The imported tungsten filaments are subject to levy of customs duty in accordance with the customs Tariff and the Import Trade Control Rules and Procedures. Till 1976, the import duty of tungsten filaments were levied and collected at the rate of 60% plus 15% surcharge on the basis that the tungsten filaments fell within the group of Items mentioned in item No. 81.01/04 (1) of the Indian Customs Tariff Act, 1975. In 1976, the respondents called upon the petitioner to pay import duty on tungsten filaments at the rate applicable under Item 85.18/27(4) of the Indian Customs Tariff Act, 1975, the rate for which is 100% duty plus 20% surcharge. In these circumstances the petitioner has filed this writ petition for issue of a writ of mandamus forbearing the respondents from levying import duty on tungsten filaments as if they fell within Item 85.18/27(4) in respect of the consignment to be cleared by the petitioner as per the invoice No. 142/248 and airway Bill No. 098/21983791 dated 18-1-1978.

3.While it is the case of the petitioner that tungsten filaments clearly fall within Item 81.01/04(1) it is the case of the respondents that they fall within 85.18/27(4) of the Indian Customs Tariff Act, 1975. It is the contention of the respondents that these filaments are part of electric bulbs and therefore should be assessed as electric bulbs.

4.It is necessary to set out the relevant provisions of the Indian Customs Tariff Act, 1975. Item 81.01/04(1) to the extent relevant for our purpose is as follows-

"Tungsten, Molybdenum tantalum and other base metals, wrought or unwrought, and articles thereof; (1) Not elsewhere specified ... 60%." *

Item 85.18/27(4) to the extent relevant for our purpose is as follows-

"Electric filament lamps and electric discharge lamps (excluding infra red and ultra violet lamps) are lamps; electrically ignited photographic flash bulbs... 100%." *

The respondents do not dispute that the filaments are made of tungsten which is specifically mentioned in Item 81.01/04(1). Once it is admitted that the filaments in question are made of tungsten, it must naturally follow that such filaments should fall under item 81.01/04(1). It is equally not disputed that these filaments cannot straightaway be used in electric lamps as they are not capable of emitting light or electrical energy. They have to be subjected to a process of spraying and coating with a material known as getter and thereafter to a soldering process. It is only thereafter that it will become capable of generating electrical energy. Then only it can become a component of electrical bulbs. In the circumstances, it cannot certainly fall within Item 85.18/27(4). On the other hand, when it clearly falls under Item 81.01/04 (1), I am unable to understand how the respondents can bring it within item 85.18/27(4). The above conclusion receives support from two decisions, one of the Calcutta High Court and the other of the Delhi High Court. The identical question arose for consideration before the Calcutta High Court in Matter No. 948 of 1977Bengal Electric Lamps Works Ltd.v.Collector of Customs, Basu, J. observed as follows -

"As I have already indicated, the customs authorities have proceeded on the footing that these goods are identifiable parts of the electric filament lamp. As I have also indicated earlier according to the petitioner these filaments by themselves are incapable of emitting any light or electri