| SooperKanoon Citation | sooperkanoon.com/1752 |
| Overruled By | Atul Glass Industries (Pvt.) Ltd. Vs. Collector of Central Excise |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi |
| Decided On | Jul-24-1984 |
| Reported in | (1984)(18)ELT542TriDel |
| Appellant | Collector of Central Excise |
| Respondent | Atul Glass Industries Pvt. Ltd. |
2. M/s. Atul Glass Industries Private Limited (hereinafter to be referred as the respondent) filed Civil Writ Petition No. 106/80 before High Court, Delhi against the said directions. Later, as directed by the High Court in the said petition, they filed an appeal before the Applleat Collector of Central excise and the same was later disposed of by the Collector of Central Excise and the same was later disposed of by the Collector (Appeals), New Delhi under his order dated 24-1-1984, whereunder he set aside the directions of the Superintendent, Central Excise, Faridabad in his letter dated 20-1-1984, os far as it related to mirrors but confirmed it with reference to other items. This appeal by the Collector of Central Excise, New Delhi is against the said order dated 24-1-1984 so far as it related to mirrors. The respondent has, in turn, filed cross objection No. 274/84-D. Dut in so far as no relief is claimed thereunder except the dismissal of the appeal itself, it is not a cross objection in the real sense but only consists of submissions of the respondent against the case of the appellant.
3. Shir K.D. Tayal, Senior Departmental Representative appeared for the appellant while the respondent was represented by Shir S.P. Kampani and Shir Lachman Dev, Consultants and Shir H.K. Kochar, Advocate.
4. We may at the inception onte that after arguments in the hearing had proceeded for some time, Shir Tayal submitted that the matter may require to be remanded since there had been conflicting Trade advices from time to time, classifying mirrors originally under item 23A (4) (Tariff Advice 60/79) and then under item No. 68 (Tariff Advice No.6180) and still later under Item No. 23A(4) (Tariff Advice No. 41/8) and the basis for such conflicting classification may have to be gone into by the lower adjudication authorities so as to arrive at the reasons for the alternating stands. But Shir Kampani for the respondent submitted that the question of earlier classifications and the reasons that led to differing classifications need not be gone into now and that as the appeal relates to a simple question of classification only, it ma be disposed of by this Tribunal finally without a remand.
Thereafter arguments were continued and both sides were heard with reference to their respective contentions.
5. Shir Tayal submitted that mirrors would fall under Item No. 23A(4) of the Central Excise Tariff, being glassware as mentioned in that item. Item23A(4) relates to "other glass and glassware including tableware". In this connection, Shir Kampani pinted out that there had been some vacillation on this question even in the grounds of appeal, since grounds (2) to (5) appeared to read as if mirrors are to be classified under the heading "glasswar" whereas ground No. (6) appears to treat it as "glass". But at the time of arguments, Shir Tayal submitted that the department seeks classification under the heading "glassware" and not as "other glass".
6. Shri Tayal pointed out that the order of the Appellate Collector dealt only with the question as to whether mirrors would come under the description "other glass" and there was, therefore, no consideration of the question whether it would be "glassware". On the meaning of the word "ware" Sri Tayal referred to the decisions of the Madras High Court in English Electric Company of India Limited v. Superintendent, Central Excise and Ors. (1979 E.L.T. J 36) and Secretary, Ministry of Finance v.W.S. Insulators of India (1983 E.L.T. 2184). These two cases, no doubt dealt with porcelainware and not glassware. But Sri Tayal referred to these judgments to show how they understood the term "ware". The meaning assigned to the said term in several dictionaries has been quoted in the second of the said decisions. The dictionary meanings are seen to be that articles of the same class, especially manufactured articles, used collectively, come under the description "ware", examples thereof being tableware, glassware, silverware, etc.
Sri Tayal contended that in that sense, mirrors, which are essentially a plate glass with a silver-nitrate coating on one side, would properly fall under the description "glassware".M/s. Indo International Industries v. Commissioner of Sales Tax, UP (AIR 1981 Supreme Court 1079), in interpreting items in statutes like Excise Tax Acts, resort should be had not to the scientific and technical term on expressions used, but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. We have, therefore, to consider whether mirrors would in common trade parlance be known as "glassware" or not. Sri Tayal claimed it would be so and pointed out that mirrors could be commonly obtained from traders dealing in glassware. But Sri Kampani contended that mirrors are also available in general stores as well as furniture dealers and, therefore, it would not be correct to contend that mirrors would be "glassware" because they may be obtained from traders dealing in glassware. So far as furniture dealers are concerned, mirrors would be sold by them as part of dressing tables and not as mirrors as such. So far as general merchants are concerned, they deal with various articles of common house-hold use, one of which may be mirrors. But it cannot be denied that mirrors are generally obtainable from traders dealing in glassware. It, therefore, appears to us that the contention of Sri Tayal that mirrors would be "glassware", as accepted in common trade parlance, is correct.
8. Sri Tayal then drew our attention, to the Glossary of terms relating to glass and glassware, issued by the Indian Standard Institution (IS : 1382-1981). He pointed out that in page 3 para 0.1, it has been observed that the standard was adopted by the Indian Standard Institution after the draft finalized by the Glassware Sectional Committee had been approved by the Chemical Division Council. He pointed out that mirrors were dealt with at page 32 of the publication as part of glassware. It has been held in Parry Confectionaries Limited, Madras (1980 E.l.T. 468), Porrits and Spencer (Asia) Ltd. (1980 E.L.T. 679) and Delhi Cloth and General Mills and Company Limited (1977 E.L.T. 199-Supreme Court) that for purposes of classification under the Central Excise Tariff, the publications of the Indian Standard Institution are a good guide. Therefore, under these circumstances, the fact that mirrors have been dealt with in their publication as part of glassware, would also support the contention of the appellant- Sri Kampani, no doubt, pointed out that the said glossary deals with other items such as toughened glass, wired glass, etc., also but that they have been held to be not classifiable under item 23A(4) by the Bombay High Court as also this Tribunal. But that was only on the basis that they were not glass as contended by the department.
9. Sri Kampani contended that mirrors would not be glassware but only an article of toilet or a toilet requisite. In this connection, he relied upon the decision of the Allahabad High Court in Tarkeshwar Nath Agarwal v. Commissioner of Sales Tax (34 Sales Tax Cases 497). But that decision turned on the entries in the UP Sales Tax Act, one of which specifically related to toilet requisites. It was in that connection that the Court had to decide whether a looking glass should be classified as "glass" or "glassware" or as a "toilet requisite". The Court held that looking glasses should be classified as a toilet requisite as they will more properly fall under that specific head.
Therefore that decision cannot be of any relevance with reference to the classification under the Central Excise Tariff.Bharat Electronics Limited v. Collector of Customs (1983 E.L.T. 589) and pointed out that in the said decision Chrome Clad Glass Plates were held to fall under tariff item 68 and not under item 23 A. He contended that just as chrome clad glass plates were held not to fall under item 23A, mirrors also should be so held, they also being glass coated with silver nitrate. But it may be seen that so far as chrome clad glass plates are concerned, they consist of glass plates coated which chrome layer on one side, the special use of such coated plates being for manufacture of masks required for the production of semiconductor devices and integrated circuits, the masks being manufactured by coating a thick layer of photo resist on the chrome clad glass plates and exposing them to ultra violet light. It was in view of such specialised use that chrome clad glass plates had been held to be not ordinary glass plates but composite goods used for a specific purpose.
But in case of mirrors, they are plate glass with a coating of silver nitrate and other protective coating on one side, with no specialised use except to reflect objects. Therefore, reliance on the decision in 1983 E.L.T. 589 does not appear to be appropriate.
11. Sri Kampani further relied upon the decision of the Supreme Court in Indo International Industries v. Commissioner of Sales Tax (1981 E.L.T. 325). The case dealt with hypodermic clinical syringes made of glass. The Supreme Court held that though they Were articles made of glass and may, therefore, fall under the expression 'glassware', such syringes would never in commercial sense be called glassware and a general merchant dealing in glassware would not ordinarily deal in such articles as clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are normally available only in medical stores or with manufacturers thereof. Having regard to such specialised significance and utility, the Court held that the clinical syringes would not fall under the head 'glassware' under entry 39 of the schedule of the UP Sales Tax Act but would fall under entry No. 44 dealing with hospital equipment. But, as Sri Tayal pointed out, mirrors have no such specialised significance, utility or usage and are common articles of ordinary every day use. In the circumstances there is no ground to take them out of the category of glassware, in which they would normally fall for the reasons stated earlier.
12. Sri Kampani further relied upon notification No. 110 of 1971 under which unfinished glass liners were considered to fall under item No.23A(4) while finished liners for use in vacuum flasks were classifiable under item No. 55(2). He contended that the only difference between the unfinished glass liners . and finished liners was the silver coating and this itself would show that the department accepted that by reason of the silver coating, the article went out of the purview of item 23A(4). But, in this connection, it should be remembered that unfinished glass liners required not merely silver coating to convert them into finished liners for use in vacuum flasks, but that air between the two glass walls has to be evacuated and sealed to prevent re-entry of air. Item 55 deals with vacuum flasks and parts. Item 55(2) relates specifically to parts of vacuum flasks. It is in these circumstances, that finished liner were classified under item 55(2) and not under item 23A(4). Hence no reliance can be placed on the said notification as supporting the present case of the respondent.
13. Sri Kampani further contended that a mirror would be a composite item, as had been held in the case of chrome coated glass and for that reason also it would fall outside item 23A(4). But for the reasons already stated, this argument also is not acceptable.
14. In the appeal memorandum reference has been made to the Indian Trade Classification-Revision 2, in which under group No. 664-Glass, sub- item 664.8, 664.8001 and 664.8009, dealt with mirrors. But, as pointed out by Sri Kampani himself, the Trade Classification carried a note that the same would not be binding on Customs authorities for classification for tariff purposes. The said trade classification had been more for purpose of facilitating collection of data. Therefore, it may not be appropriate to place reliance thereon in the present case.
15. In view of the above discussion we hold, on a careful and anxious consideration of the submissions of both sides, that glass mirrors would fall under item No. 23A(4) of the Central Excise Tariff for purpose of levy of duty. Accordingly, this appeal is allowed and the order of Collector of Central Excise (Appeals) dated 24-1-1984 is set aside to that extent. The Cross Objection is dismissed.