1 .This is a Revenue appeal against the order of Collector (Appeals), Bombay granting the benefit of the exemption Notification No.242/76-Cus. in respect of imported goods namely "Electrocast Refractories with Zirconia Throat Well Blocks for Glass Melting Furnace" classified under Heading 6902.90 of the Customs Tariff, 1985; and thus allowec their refund application, which had been rejected by the Asstt. Collector (Refund).The Asstt. Collector held that the importers were licenced to manufacture lamps and not Industrial Furnaces. Photographs submitted drawing & suppliers literature showed that the goods are pre-fabricatec Blocks /Elements for the construction of the glass furnace in their plant. There fore, the Id. Asstt.
Collector held that the goods do not fall within the description of bricks of special shape or quality. The classification under Heading 6902.90 not having been disputed and in case the goods are accepted as parts o furance (falling) under Chapter 84/86 (CTA) then it ought to be classifiable under Heading 9806 CTA and hence on this reasoning, rejected the importer' 6 refund claim.
2. Disagreeing with this finding of Id. Asstt. Collector, the Collector (Appeals) after careful consideration of the entire literature, has held as follows : "The benefit of Notification No. 242/76-Cus. is available to the refractory bricks of special shape or design for use as component parts of industrial furnaces falling under heading No. 6902. The intention of the notification is not to limit the benefit only to the initial setting up of industrial furnaces, or the manufacture thereof, otherwise it would have been stated so in the notification itself as is the case with other notifications, such as Notification Nos. 181/76, 39/79 and 155/86 (dealing with importations of spare parts/components). Therefore, the benefit of concessional rate stipulated under Notification No. 242/76-Cus is applicable irrespective whether the imported refractory bricks were used in initial manufacture or as replacements for the bricks contained in the glass furnaces already installed.
The appellants have brought detailed designs of both the bricks imported and the glass furnaces where these bricks are to be installed as replacements. I find from the photo copy of the blue print submitted by the appellants that the aforesaid bricks are being used in the portion known as "throat" of the furnace. This has been defined in ISI 4041-1987 under 2357 as : ..."Submerged passage in a bridge connecting the two edges of a tank furnace...." This description corresponds with the "throat" shown in the photo copy of the blue print of the glass furnace submitted by the appellants. I also find that the refractory blocks/bricks imported by the appellants were supplied by the manufacturing company under specific description numbers such as ER-1711, RT and types 1200, 250,160,145 etc., each having some specific notations. The imported bricks have been shown in the invoice as "glass furnace contact material - throat well blocks". I also find from the assessment made in the Bill of Entry Cash No. 3632 dated 15th April, 1987 for the subject consignment that the goods imported were ... Electrocast Refractories with Zirconia Throat Well Blocks for Glass Melting Furnace..." and assessed under chapter heading 6902.90 of the tariff.
There appears to be no dispute whatsoever at the time of assessment whether the subject goods were "refractory bricks" to be used in glass furnace by the appellants. The Asstt. Collector, in the impugned order has denied the benefit of concessional Notification No. 242/76-Cus., to the subject goods as not being in the nature of special shape or design. No satisfactory reason for reaching this conclusion is available in the impugned order. On the contrary, 1 find from the detailed references of design numbers, both in the invoice and the drawings produced by the appellants for the corresponding design numbers, that these bricks have unique designs as ascribed by the manufacturing company. In case, the Asstt.
Colector was of the view that the imported refractory bricks were of some common shapes and designs and interchangeable with other parts of the furnaces, or capable of being installed elsewhere than in the glass furnaces, he should have specifically examined this position and given his findings.
Therefore, there appears no alternative but to accept the appellants contention based on the technical literature produced that the subject goods are refractory bricks of special shape and design and supported by the notations made in the invoice. Even during the initial assessment made in the Bill of Entry, the subject goods were classified as refractory bricks under chapter heading 6902. As such, these bricks would also be eligible for the benefit of Notification No. 242/76-Cus. since they were imported for use as a component part of a glass furnace already installed in their premises. The appeal is accordingly allowed." 3. We have heard Shri Vijay Singh, Id. DR for the Revenue and Shri Joseph Vellapally, Id. Sr. Advocate for the respondent importer. Shri Vijay Singh arguing for the revenue submitted that refractory bricks are distinct from blocks. The item had been described in the Bill of Entry as Blocks.The invoice also mentions the item as blocks. Thus bricks are different from blocks. The benefit of notification, which refers only to Bricks, cannot be extended to Blocks. The benefit can be extended only if they had imported for building the entire refractory and not to mere 9 pieces imported by them.
4. Ld. Sr. Advocate submitted that Block is a brick and that is how the item is understood in commercial and trade parlance. Ld. Sr. Advocate referred to the definition appearing in ISI 4041-1987 and also in the Concise Oxford Dictionary, which defines a "brick" as a small rectangular block and 'Block' has been defined as a 'Solid uneven material, a solid cube'. He also referred to the Customs Trade Public Notice dated 5-4-1979, which had stated that the Block is a brick and had held that the benefit of notification should be extended. Ld. Sr.
Advocate also referred to the definition of the terms 'Brick' & 'Block' appearing at page 243, 245 of Encyclopaedia Britannica. He also relied on the affidavit filed by the party and on the ratio of Hon'ble Supreme Court rendered in the case of Advance Bricks Co. v. Assesssing Authority, Rohtak and Anr.-1987 SCC 5. We have carefully considered the submissions made by both the sides and have also perused the order passed by the Collector (Appeals), Bombay. The Id. Collector, as can be seen from the order reproduced above, has gone through the technical literature besides the definition of the term "throat" appearing in ISI 4041-1987. He has found the description corresponds with the terms "throat" shown in the photo copy of the blue print of the glass furnace submitted by the appellants. The item refractory blocks/bricks has been supplied by the manufacturing company with specific description Nos. and having some specific notations. The Id. Collector has also noted that these refractory bricks/blocks are used in glass furnace. We have considered the submissions made by ld. Sr. Advocate, who has brought to our notice the judgment rendered by Hon'ble Supreme Court in the case of M/s. Advance Bricks Co. The Hon'ble Supreme Court was examining the term "bricks"appearing in the State Govt. Notification dt. 5-5-1973 and after a careful examination, the Hon'ble Supreme Court has held that where the term "brick" has not been defined in the Act, then in that event in the absence of the statutory definition of the term "brick", the common parlance meaning of the word as found in the dictionaries has to be accepted. The Hon'ble Supreme Court has referred to the term "brick" appearing in Collins English Dictionary, which defines the term as rectangular block of clay mixed with sand and fired in a kiln or baked by the sun, used in building construction. The definition appearing in New Webster's Dictionary has also been referred which carries the meaning of the word as "a block of clay usually rectangular, hardened by the sun or by burning in a kiln and used for building, paving etc.". Oxford English Dictionary defines "Brick" as 'a substance formed of clay, kneaded, moulded and hardened by baking with fire, or in warm countries and ancient times by drying in the sun'.
Encyclopaedia Britannica indicates that 'after the bricks are formed they must be dried to remove as much free water as possible. Drying, apart from sun-drying, is done in drier kiln with controlled draft and humidity'. Therefore, the Hon'ble Supreme Court has relied on these dictionary meanings to come to the conclusion that the term "brick" covers both sun-dried and ovenbaked bricks, and there is no definition in the Act, the contention of the appellant that sun-dried bricks are a class of 'brick' to which the notification under Section 18 applies cannot be thrown out as wrong. Ld. Sr. Advocate has drawn reference to this judgment to argue that the term 'brick' refers to a small rectangular block. In this context, he has also relied on the definition of the term appearing in IS 4041-1987 at paras 19.23,19.24,19.25 and 19.26 which are noted herein below : "19.23 Rider Bricks, Sole-Flue Port Bricks or Nostril Block - A group of perforated or spaced bricks on which the checker bricks of the regenerator rest.
19.24 Roof Block - A long, deep brick used to span an oven and form the roof.
19.25 Spreader Block or Deflecting Block - A long brick with a triangular cross-section placed across an oven and below the charging holes, with the apex directed upwards, so that the stream of coal entering the oven 19.26 Top Brickwork - The part of the battery comprising all the brickwork above the oven roof".
Referring to these definitions, he submitted that the terms 'Bricks' and 'Blocks' have to be understood in the same sense. We have considered the submissions made by the ld. Sr. Advocate and noticed that the term 'Block' is a solid piece of hard material and a brick is a small usually rectangular block used in construction. There is force in this submission made by the ld. Sr. Advocate and also in the reasoning given by the ld. Collector, and the same is required to be accepted. Further, we notice that the Notification in question grant exemption to "refractory bricks of special shape or quality for use as component parts of industrial furnace falling under Heading 69.01/90 of the First Schedule of the Customs Act, 1975". As has been noted by the Id. Collector, there is no dispute with regard to the classification of this item under Heading 69.01/90 of the tariff. So long as this item is understood as a refractory brick to be used as a component parts of industrial furnace, then the benefit of the notification cannot be denied to the appellants. The only doubt raised by the Assistant Collector is that these blocks do not fall within the description of bricks of special shape or quality. This doubt has been made clear with the evidence produced by the importer, and the same having been accepted by the Id. Collector. We also notice that in the case of Alembic Glass Industries Ltd. v. Collector of Customs, as reported in 1993 (67) E.L.T. 542. The importer had imported "Electric Cast Refractories with Zinconia content 40% and above (Refracting bricks of Special shape for vise as component parts to Glass furnace). The Tribunal after detailed examination of this case and after due consideration of the entire evidence including the said IS1 specification has held that the said item is entitled to the benefit of the Notification in question. We notice that the entire literature produced by the importer in that case supports the present case also and there is no reason as to why we should not apply the ratio of this judgment to the present case. In that view of the matter, we hold that the Id. Collector had rightly granted the benefit of the notificatior to the impugned goods. There is no merit in the appeal and hence it is dismissed.
6. I have gone through the order recorded by learned Member Shri Peeran. Since I am not able to agree with the findings therein I am recording the following separate order :- 7. The question to be decided in this case is whether "Electrocast Refractories with Zirconia Throat Well Blocks for Glass Melting Furnace" classifiable under Heading 6902.90 of the Customs Tariff Act, 1985 would be eligible for exemption under Notification No. 242/76-Cus.
which exempt Refractory Bricks of special shape or design for use as component parts of Industrial Furnace falling under Heading 69.02. The Department's case is that the Collector (Appeals) has erred in holding that the disputed goods are refractory Bricks of special shape and design, and therefore, eligible for exemption under said notification.
I am inclined to agree with the department that there is a clear distinction between refractory bricks and blocks since these items have been mentioned separately in Heading 6902 of CTA, 1975. The contention of the respondents that blocks and bricks are synonymous does not appear to be acceptable not only for the reason that two items have been separately mentioned in Tariff Heading 6902 but also for the reasons that as per the Concise Oxford Dictionary the terms "Brick" means "Clay kneaded, moulded & baked or sun dried, small usually rectangular blocks". It follows that all blocks would not be treatable as bricks since only such blocks which are small and rectangular in shape would be categorised as bricks. The appellants have mainly relied upon the relevant ISI specification. However, as held by the Hon'ble Supreme Court in the case of Dunlop India Ltd. v. UOI, reported in 1983 (13) E.L.T. 1566 in interpreting meaning of works in a taxing statute the acceptation of a word by the trade and its popular meaning should commend itself to theauthorities. In the case of Hemraj Goverdhandass v. CCE, reported in 1978 (2) E.L.T . (J350) the Apex Court has held that in interpreting the taxing statute there is no room intendment but regard must be had to the clear meaning of the words. Further in the case of Rajasthan Spg. & Wvg. Mills Ltd. v. CCE, Jaipur, reported in (1995) ECC 167 the Hon'ble Supreme Court while holding that blended yarn manaufactured by the assessee in which polypropylene fibre predominated was not entitled to the benefit of Notification No. 322/77 which exempted polypropylene spun yarn, observed that since it was a case of exemption from duty there was no question of any liberal construction to extend the term and scope of the notification as such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification to which no extended meaning can be given to exempt the items by enlarging the scope of exemption granted by the notification.
8. Under these circumstances and having regard to the common meaning of the term "Brick" and the fact that in the present case the suppliers in the course of international trade have not chosen to describe them as "Bricks" in the relevant import documents, the imported goods cannot be deemed as covered by the said notification. In this regard it is also seen that in the case of Steel Authority of India Ltd. v. Collector of Customs, reported in 1989 (42) E.L.T. 89 the Tribunal has held that Mark-G.K.-7 Well Block bricks could be deemed as covered by Notification No. 242/76.
9. In view of the foregoing and following the ratio of the Tribunal's decision in the case of Steel Authority of India Ltd. (supra) I set aside the impugned order and allow the appeal.
10. I have perused the order proposed by the learned Member (Judicial) as also the one proposed by the learned Member (Technical). I find that the issue involving in the present appeal is granting of the benefit of Notification No. 242/76. Having regard to the facts and circumstances of the case, I am inclined to agree with the order proposed by the learned Member (Technical) for the reasons set out in his order.
In view of the majority opinion, the impugned order is set aside and the appeal is allowed.