H.R. Syiem, Member (T)

1. These two appeals arose from the orders of the Appellate Collector of Central Excise, Calcutta, one No. 494/ BR/84 dated 14-9-1984 and another No. 590/BR/84 dated 7-11-1984. The facts are the same except that the material in one case is aluminium and in the other case copper. The manufacturers M/s. Indian Explosives Ltd. (IEL) make detonators which are used in explosive for blasting work in coal-mines, stone quarries. In both cases sheets of the metal, aluminium or copper, as the case may be, are taken to make a small cylinder like article in which the initiating charge is put and embedded in the blasting explosive compound. Another fact which needs to be taken note of at the beginning is that the Collector (Appeals) said that the article manufactured from the aluminium strip was a container, while the similar article made from copper was a tube; and there lies the paradox.

2. The learned counsel for the appellants said that they manufactured the aluminium article, called a container by the Appellate Collector and the copper article called a tube by the same Appellate Collector, in a punch. A circle taken from the aluminium or copper strip is pressed in the die in a series of operations. The circle emerges as a cylindrical object with one end closed. There are the detonator caps. At the hearing the learned counsel was asked whether they also make the same article by taking a sheet or strip of aluminium or copper, rolling it into a tube, welding the edges, cutting required lengths out of it and closing one end by fusing or by any other process. He replied in the negative, emphasising that they do not manufacture the aluminium articles in that fashion. This went uncontradicted by the department's counsel.

3. Therefore, the aluminium and copper caps used as detonators, from the beginning took the shape in which they are seen in their ultimate finished stage. The Assistant Collector called the aluminium and the copper caps, aluminium tubes and copper tubes. For reasons that are not very clear, the Appellate Collector decided in September, 1984 that the copper cap was a tube, while in November, 1984 he decided that the aluminium cap with the very same configuration and shape as the copper cap, was a container. He even referred in his later decision to his earlier decision in respect of the copper and said that after referring to the explanation under item 27 and item 46, it did not appear that this could be a container; it was a tube, especially when aluminium tooth paste tubes were known as collapsible tubes. Thus, he thought that while the aluminium cap could be a container, the copper cap could not be a container. Unfortunately, if the aluminium could be a container, the copper also could be a container because they both receive and hold similar kinds of substances, that is, explosives. On the other hand, if the copper cap can be a tube, the aluminium cap can just as easily be a tube. The two caps look alike in form and, therefore, we can see no good reason why one should be a container, while the other should be a tube.

4. A container is defined in the tariff under items 27 and 46 as

"ordinarily intended for packaging of goods for sale, including collapsible tubes, casks, drums, cans, boxes, gas cylinders, and pressure containers, whether in assembled or unassembled condition and containers known commercially as flattened or folded containers."

This definition seems to have convinced the Appellate Collector that the copper product could not be a container but the aluminium could. He cites collapsible aluminium tooth paste tubes to say that the fact that one end of the tubular cylinder is closed was no proof that the article was not a tube. This overlooks the fact that the aluminium tooth paste tube was in fact a tube when it was made; it is only after it is filled with paste that its end is closed. Till then it is an open tube and qualifies to be called a tube in all circumstances. This is not true of t