ORDER
1. M/s. Shon Ceramics Pvt. Ltd., (hereinafter called the 'appellants'), are the manufacturers of 'Mosaic Tiles'. The appellants' products were initially classified by the department under the then tariff item 23B 'China Ware and Porcelain Ware'. The appellants filed an appeal petition before the then Assistant Collector of Central Excise for correct classification under T.I. 23D and their appeal was allowed and their goods classified under T.I. 23D and were entitled to exemption under Notification 41/74 dt. 1.3.1974. In 1983-1984 Budget the tariff item 23D stood omitted and consequently 'Mosaic Tiles' were classified under the then T.I. 68 and were eligible for exemption under notification No. 234/82 dt. 11.10.1982. (at S. No. 52) as amended by Notification No. 119/84 dt. 11.5.1984. On introduction of Central Excise Tariff Act of 1985, the appellants filed a fresh classification list classifying their item 'Mosaic tiles' under heading 6807.00. The Assistant Collector of Central Excise, however classified their product under Chapter Heading No. 6905.00. Being aggrieved by the above order, the appellants filed the above appeal and requested for personal hearing which was granted.
2. Shri V.L. Poonekar, Advocate and S.R. Parikh, Tech. Director of the appellants-Company appeared for personal hearing and reiterated the arguments made in the appeal petition, I have gone through the background of the case, Order-in-Original and the arguments made at the time of personal hearing. Appellants manufacture 'Mosaic Tiles' and sell in the market as such. Their product was previously classified under T.I. 23D and they were exempted under Notification No. 41/74. In the budget of 1983-84, T.I. 23D was omitted. So the items came under the categories of the goods falling under T.I. 68 and were exempted under Notification No. 234/82 the product appearing at Sr. No. 52 as amended by Notification No. 118/84. After introduction of the new tariff the appellants classified their product under chapter sub-heading No. 6807.00 and claimed exemption under Notification No. 50/86-CE, dt. 10.2.1986 and 'Mosaic Tiles', one of the two products declared exempted in the above notification. The notification No. 50/86 includes the 'Mosaic Tiles' i.e. to say the tiles known commercially as 'Mosaic Tiles' falling under chapter heading No. 6807.
3. The Assistant Collector has classified their product 'Mosaic Tiles' in the Classification List under heading No. 6905.00 instead of 6807.00. The only ground that the Assistant Collector has given is that whatever is fired falls under Chapter 69. That the appellants argued that articles which are required to be fired do not necessarily fall under Chapter 69. I agree with this contention of the appellants. The flowchart referred to by the Assistant Collector does not state that firing is done after shaping. The Assistant Collector has treated the process of 'pressing' as shaping. In fact 'shaping' which appellants call 'setting' takes place after 'firing'. 'Firing' takes place before shaping in respect of products which falls under Chapter 69. In fact the word 'CERAMIC' does appear even in Chapter 68 (C.H. 68.01).
4. I observed that the Appellate Collector of Central Excise, Bombay held in his common order-in Appeal Nos. 1455/78 and 1454/78, dt. 16.12.1978 issued from File No. V(23B) 2.10/77 that the appellants' product fall under T.I. 23D. The Appellate Collector's Order was not reviewed and set aside by any higher authority, judicial or quasi-judicial. The Tribunal has observed in the case of Macneil and Magor Ltd. that once the Order-in-Appeal has become final, the Assistant Collector has neither authority of law nor jurisdiction to revise the Order-in-Appeal passed by the Superior Authority.
5. The appellants' products are commercially known in the 'Trade Parlance', and in the market as 'Mosaic Tiles'. I have seen some of the invoices, cash/credit memo issued by the appellants' to their customers, few purchase orders issued by the appellants' buyers, certificates issued by the users of the appellants' products, the appellants' own trade literature, affidavits filed by some of the users of the appellants' products and agree with the appellants' contention that their products fall under Chapter 68. The classification of excisable goods should be determined according to their 'commercial parlance' and how the products are known in the trade. If a product is in the taxing statute Act, then it should be classified according to its popular meaning or the meaning attached to it by those dealing with it that is to say, to its commercial sense. The commercial usage or parlance test is relevant for construing the items in the Central Excise Tariff, regardless whether it is so specified or not therein. The above observations have been made by Hon'ble Supreme Court of India in a number of cases such as in the cases of D.C.M. Ltd. v. State of Rajasthan 1980 ELT 383 : 1981 ECR 51 SC, Indo-International Industries v. Commissioner of Sales Tax 1981 ELT 325 : ECR 580 SC, Dunlop India Ltd. v. Union of India 1983 ELT 1566 : 1975 CC 150, Tribunal in the case of Empire Industries Ltd. 1984 (19) ELT 572 and Hon'ble Bombay High Court 1981 ELT 423 : 1980 ELT 249. Several other High Courts Govt. of India 1982 ELT 493 and 1982 ELT 786 and Central Board of Excise and Customs 1982 ELT 424, Supreme Court in the case of Indian Aluminium Cable Ltd. v. Union of India : 1985(21)ELT3(SC) and the Tribunal in the case of Collector of Central Excise Kanpur v. West Glassworks Ferozabad Cegat have held that for the purpose of classification of goods true test is not the process of manufacture, but the identity of the manufactured goods read with the description in Central Excise or failing that, in terms of the commercial parlance. Kerala High Court in the case of Purshottam Gokuldas Plywood Co. 1983 ELT 1677 : 1983 ECR 973 has held whether a particular article would fall within a particular tariff entry or not has to be decided on the basis of tangible material or evidence to determine how such an article is understood in 'common parlance' or in 'commercial world' or in 'trade circle' or in its popular sense meaning i.e. that sense which people conversant with the subject matter with which the statute is dealing, would attributed to it. Material or evidence can be in the form of affidavits or examination of persons engaged in the trade or persons who are dealing with the subject matter, competent persons who can speak about the subject or the opinion of technical experts or opinion expressed in standard books on the subject.
6. Notification No. 50/86, dt. 10.2.1986 which came into effect from 28.2.1986 exempts among others, Mosaic tiles, that is to say, tiles known commercially as 'Mosaic Tiles'. The appellants' products are known in commercial and trade parlance as 'Mosaic Tiles' as discussed above. The above Notification No. 50/86 clearly classifies 'Mosaic Tiles' under chapter sub-heading No. 6807.00. For determination of classification of an excisable product recourse can be taken from a notification, if the Notfn. itself defines a product under a tariff item. Hon'ble Supreme Court in the case of J.K. Steel v. Union of India and Ors. 1978 ELT 355 : ECR 281 SC has held that in the case of fiscal statutes, it may not be inappropriate to take into consideration the exemption granted in interpreting the nature and scope of the impose. The Supreme Court in the same judgment has further held that 'for finding out the true scheme of a taxing measure, we have to take into consideration not merely the levy but also the exemptions granted'. In the case of Kailash Nath v. State of U.P. AIR 1975 S.C. 790 the Supreme Court has held that the exemption granted in pursuance of the Notification issued under an Act must be considered as having been contained in the parent Act itself.
7. Though the commercial parlance is an important parameter for determining the classification of a product for Central Excise purpose, yet where a word has a scientific or technical meaning or whether technical and scientific tests offer guidance within limited sense, the opinion of technical experts well conversant with the product or opinion expressed in the standard technical books on the subject should be relied upon by the quasi-judicial authorities. Here test certificates and opinion of eminent technical experts play a major role. In respect of the appellants' product a sample of 'Unglazed Mosaic Tiles' was tested by the Central Glass and Ceramic Research Institute and in its test certificates S. No. CC/NC/079, dt 13th December, 1977 the Institute has opined that the appellants' products were found to be on test as 'coarse-grained material'. As per technical report submitted by the appellants, the appellants' products are made of 80% or more of various stones such as Quartz, Silica and Feldspar chips and 20% or less clay material is being used for binding purpose. Chapter 68 deals with articles of stones, cement, mica etc. In terms of Note No. 2 of Chapter 69, this Chapter (i.e. 69) applies only to ceramic products which have been fired after 'shaping'. The flow chart of the manufacture process of the appellants' products reveals that in respect of their products 'Mosaic Tiles' 'firing' takes much before shaping. So their products do not qualify for classification under Chapter 69 as contended by the Assistant Collector. Chapter heading 69.06 talks of among others 'glazed ceramic mosaic Cubes'. The appellants contended that their products are not 'CUBES' but TILES'. I agree with the appellants' contention. By CUBE we mean an item or piece whose all sides are equal e.g. an item or piece having size of 1cm 1cm 1cm. In Geometry 'cube' means a regular solid with 6 equal square sides. Whereas the Random House Dictionary of the English language (College Edition) has defined 'tile' as a thin slab or lent piece of backed clay or various slabs or pieces as of stones or metal. 'Tiles' are of any shape such as square, rectangular, round, hexagonal, octagonal etc. In case of 'tile' the thickness is less than length and width, whereas in respect of 'Cube' all sides are equal as defined above. So as per above dictionary meaning and arithmetic as well as geometric definition 'tile' cannot be equated with 'Cube' and therefore, the appellants' products don't qualify for classification under Chapter heading No. 69.05.
8. The appellants argued that in the Trade Notice No. IV/16-249/85/HP-PF, dt. 21.2.1986 of Hyderabad Collectorate the 'China Ware' and 'Porcelain Ware' which were classified under the old Tariff Item 239 under the heading 'Comparative showing chapter Nos. in the new Excise Tariff vis-a-vis present tariff have been shown against Chapter 69. Similarly Asbestos Cement products which were previously classifiable, under T.I. 23C and at present placed under Chapter 68 along with articles of stone to establish their claim that their products fall under Chapter 68 and not under Chapter 69. They argued that trade notices and Board's instructions are binding on the lower authorities. The appellants also brought to my notice the Notification No. 83/86, dt. 10.2.1986 whereby the respective tariff entries existing prior to Budget of 1986-1987 have been specifically shown in respective substitution entries in the table annexed to the said Notification wherein it has been mentioned that the old tariff item 23B would fall under Chapter No. 69 according to the new budgetary change in 1986 budget. They, therefore, contended that their product did not fall under T.I. 23B, but under T.I. 68 prior to introduction of new tariff would not fall under Chapter 69.1 see sufficient force in the appellants' argument.
9. In view of the above decision, I am of the view that the appellants' products which were previously classifiable under T.I. 23D and subsequently under TJ. 68 after deletion of T.I. 23D and enjoying exemption under Notification No. 234/82 as amended by Notification No. 119/84 dated 11.5.1984 are classifiable at Chapter 68 and are entitled to the exemption under Notification No. 50/86, dated 10.2.1986 which came into force with effect from 28.2.1986) as the appellants' products 'Mosaic Tiles' which are therefore commonly known as 'Mosaic Tiles'. I therefore set aside the order of the lower authority and allow the appeal with consequented relief.