Commissioner of C. Ex. Vs. Gupta Timber (P) Ltd. - Court Judgment

Excerpt:
1. in this appeal filed by the revenue there are two issue for our consideration :- (1) whether the cuttings and trimmings in the hands of the respondents m/s. gupta timber (p) ltd. were classifiable under sub-heading no. 4408.40 of the tariff which covered all cuttings and trimmings of plywood of width not exceeding 5 cm; and (2) whether the phenol bonded board wherein saw dust was used with phenolic resin and the mixture was placed between the non-decorative veneers on both sides were classifiable under sub-heading 4406.30, as claimed by the assessee or under sub-heading 4408.90, as held by the assistant collector of central excise.the commissioner of central excise (appeals), ghaziabad held that in the present case the cuttings and trimmings were not marketable. with regard to the phenol bonded board, he agreed with the assessee that they were classifiable under sub-heading 4406.30.2. we have heard shri r.s. sangia, dr and shri pradeep jain, advocate and have gone through the facts on record.3. we find that the respondents were engaged in the manufacture of wood and articles of wood. there is, however, nothing on record to show that they were engaged in the manufacture of plywood. in the tariff entries plywood boards and other products have been separately described.sub-heading 4408.40 which covers cuttings and trimmings of plywood of width not exceeding 5 cms. will be excisable and dutiable in the hands of the manufacturer of plywood and not in the hands of the users of plywood. from the discussion of the commissioner of central excise (appeals) it appears that these cuttings and trimmings were used as fuel for boiler and were not marketable as the cuttings and trimmings of plywood for use in production of other goods. the commissioner of central excise (appeals) has held that in the hands of the assessee these cuttings and trimmings were not marketable. no material has been placed on record by the revenue that these cuttings and trimmings were usable as such in the production or manufacture of other products. in the absence of any material on record we consider that there is no justification for disturbing the findings of fact in this regard by the commissioner of central excise (appeals).4. as regards the phenol bonded board, learned advocate referred to chapter note 5 of chapter 44 wherein the expression "similar laminated wood" in heading no. 44.08 of the tariff had been explained. the assistant collector of central excise also had referred that the product contained core and face veneers on both sides and as it is also clear that the saw dust mixed with resins was placed within the core and face veneers, we consider that their classification under sub-heading no. 4406.30 was also correct. the sub-heading no. 4406.30 covers veneered particle board not having decorative veneers on any face. on the other hand, sub-heading 4408.90 was a residuary entry under heading no. 4408 which covered plywood veneered panels and similar laminated wood.5. on going through both the adjudication order and the order in appeal, we do not find any material on record to disturb the findings of the appellate authority. the appeal is rejected. ordered accordingly.

Judgment:
1. In this appeal filed by the Revenue there are two issue for our consideration :- (1) Whether the cuttings and trimmings in the hands of the respondents M/s. Gupta Timber (P) Ltd. were classifiable under sub-heading No. 4408.40 of the Tariff which covered all cuttings and trimmings of plywood of width not exceeding 5 cm; and (2) Whether the phenol bonded board wherein saw dust was used with phenolic resin and the mixture was placed between the non-decorative veneers on both sides were classifiable under sub-heading 4406.30, as claimed by the assessee or under sub-heading 4408.90, as held by the Assistant Collector of Central Excise.

The Commissioner of Central Excise (Appeals), Ghaziabad held that in the present case the cuttings and trimmings were not marketable. With regard to the phenol bonded board, he agreed with the assessee that they were classifiable under sub-heading 4406.30.

2. We have heard Shri R.S. Sangia, DR and Shri Pradeep Jain, Advocate and have gone through the facts on record.

3. We find that the respondents were engaged in the manufacture of wood and articles of wood. There is, however, nothing on record to show that they were engaged in the manufacture of plywood. In the Tariff Entries plywood boards and other products have been separately described.

Sub-heading 4408.40 which covers cuttings and trimmings of plywood of width not exceeding 5 cms. will be excisable and dutiable in the hands of the manufacturer of plywood and not in the hands of the users of plywood. From the discussion of the Commissioner of Central Excise (Appeals) it appears that these cuttings and trimmings were used as fuel for boiler and were not marketable as the cuttings and trimmings of plywood for use in production of other goods. The Commissioner of Central Excise (Appeals) has held that in the hands of the assessee these cuttings and trimmings were not marketable. No material has been placed on record by the Revenue that these cuttings and trimmings were usable as such in the production or manufacture of other products. In the absence of any material on record we consider that there is no justification for disturbing the findings of fact in this regard by the Commissioner of Central Excise (Appeals).

4. As regards the phenol bonded board, learned Advocate referred to Chapter Note 5 of Chapter 44 wherein the expression "similar laminated wood" in Heading No. 44.08 of the Tariff had been explained. The Assistant Collector of Central Excise also had referred that the product contained core and face veneers on both sides and as it is also clear that the saw dust mixed with resins was placed within the core and face veneers, we consider that their classification under sub-heading No. 4406.30 was also correct. The sub-heading No. 4406.30 covers veneered particle board not having decorative veneers on any face. On the other hand, sub-heading 4408.90 was a residuary entry under Heading No. 4408 which covered plywood veneered panels and similar laminated wood.

5. On going through both the adjudication order and the order in appeal, we do not find any material on record to disturb the findings of the appellate authority. The appeal is rejected. Ordered accordingly.