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TMI Blog1983 (8) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... er the goods were released on payment of the duty as assessed, the appellants filed a refund claim on the contention that the appropriate heading for these goods was Tariff Heading 84.38 of the Customs Tariff Act, 1975 and that the Department had taken a mistaken view in treating them as articles of glass by classifying them under Tariff Entry 70.21. Correspondingly, the classification for purposes of countervailing duty with reference to Item 23A(4) of the Customs Excise Tariff was also assailed, on the same contention, namely, that the goods were not glass or glassware of any type but essential parts of machine for producing viscose staple fibre, etc. 3. The Assistant Collector dealing with the refund claim did not accept this contention of the party, as a scrutiny of the documents revealed that the goods were described in the invoices as Pan-Glass spinnerettes , and since Chapter Note 1(c) to Tariff Heading 84, which deals with machinery and appliances or parts thereof, excluded from the purview of the said Chapter, those made of glass; he held that these have been rightly classified for purposes of basic customs duty under Tariff Heading 70.21, which specifically covered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was contended that the intention was thus made clear while enacting the new Tariff that rates of duty would not be disturbed, and that this intention had even been translated into action by subsequently promulgating a Notification, being Notification No. 9-Cus./79, dated 13-1-1979, laying down specifically that the rate of duty for all types of spinnerettes including glass and ceramic ones, would be 40%. It is urged that it was manifest that at no stage, the Government had intended to levy duty higher than already existing and from that angle also, the classification ought to have been done under Tariff Heading 84.38 which prescribed uniform rate of basic customs duty, viz., 40% for such parts and accessories, suitable for use solely or principally with the machines, covered by Chapter 84, such as spindle flyers, card clothing, combs, extruding nipples, shuttles . It is pleaded that the spindle flyers in the nature of extruding nipples were used to be assessed as parts of textile machinery, and that the lower authorities have erred in treating them, as made of glass, and by taking them to Tariff Entry 70.21. 7. The contention repeatedly was that these were composite articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f glass or ceramics to 40% ad valorem, which was the rate for general parts of machinery of this nature under Tariff Heading 84.38. He explained that controversy in this case has arisen because the import relates to a period falling in between the issue of this Notification and introduction of the new Tariff but the intention having been made explicit, not to burden the assessees with additional levy; principle of harmoneous construction required that such an interpretation of the Tariff Entry be considered which was in consonance with the declared intention of the Government. 11. He further built up his arguments by contending that the goods which were the subject matter of dispute, were not solely either of glass or of ceramics, but were admixture of the two materials along with some bonding agent used in the ring frame of the holder plate. He emphatically urged therefore that these could not have been treated to be an article of glass or as if made of glass alone for the purpose of taking it out of the general Tariff Entry 84.38, dealing with all types of spinnerettes, and for the same reasons it could not be treated as glassware for the purpose of countervailing duty. He m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the residuary Item 68 and in view of the existence of exemption Notification relating to all articles falling under Tariff Heading 68 at the relevant time being Notification No. 362-Cus. of 1976, dated 2-8-1976 no countervailing duty in any case could be charged. 13. Shri Gagrat also pointed out that before importing this bulk supply, two spinnerttes had been imported by way of samples, and he referred to the Bill of Entry pertaining to that import which revealed that at that time, the classification as given by the appellants namely, under Tariff Entry 84.38 had been accepted by the Department. He thus urged that the stand could not be changed in the manner as had been done by the Department. 14. Shri Gagrat succinctly summed up his arguments by reiterating that these spinnerettes were not wholly made of glass, so as to be taken out of Tariff Heading 84, and that in any case for purposes of countervailing duty, they certainly could not be treated as `glassware . 15. The Departmental Representative addressed reply arguments on 4-8-1983 because of paucity of time on the previous date on account of lengthy arguments by the appellants Counsel. On the later date, Shri R.C. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were shown to be of integrated manufacture whereas according to the supplier s letter in this case, the spinnerettes are plainly made of glass and that so far as the case of clinical syringes was concerned that was with reference to a notification of the Sales Tax authorities and unless we have the wording of it before us, thee could not be proper appreciation of the matter and that similarly, in the case of fuselinks, porcelain was found to be only used as a base, and the fuselinks comprised of other materials, and for that reason it was held that composition of porcelain could not be the determining factor to assess the nature of the articles. He even asserted that the subject goods have to be treated as `glassware for the purpose of countervailing duty because the case which was before the Bench in the Indo-Swiss Synthetic Gem Mfg. Co. was that of a deeming definition having been given in the Customs Tariff, which was not in the C.E.T. whereas in the present case, the description is basically that of glass and simply because they are being used as parts of machinery, would not take them out of the general description of glassware, so as not to be covered by Item 23A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they give categorically the description of the spinnerettes as of glass, and the whole stress is on the glass nozzle portions, 7 in number, each containing 2,000 holes, making the total number of holes to be 14,000. It is obviously these holes which perform the function of extrusion and thus it is glass nozzles which lend the character of spinnerettes, to the whole articles; the ceramic portion being only of the holder plates for these nozzle plates. It is pertinent to note that the learned Counsel himself explained that `spinnerettes was another name for extrusion nipples . 20. The subsequent communication as given at page 5 of the Paper Book also lays emphasis on the fact that the spinnerettes were that of glass and the same position is indicated in other letters which are at pages 12 and 15 of the Paper Book. These details given and supplied by the manufacturers as well as the description given in the invoice thus take the matter beyond all possible doubt and unmistakably indicate that what actually are called spinnerettes in this consignment were made of glass. 21. Apart from this plain description, the rule of interpretation as per copy supplied by the appellants thems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e porcelain did not lend its essential character to the commodity and it was in that context that it was held that these could not be treated to be porcelainware . In the instant case, on the other hand, the glass has gone into the making of those portions which lends its essential character to the article so as to make them spinnerettes exclusively of glass, and thus they have to be treated nothing but glass spinneretees . They have been so described by the manufacturers themselves. We, therefore, feel satisfied that the lower authorities did not go wrong in treating them as glass spinnerettes , and we are also of the view that the previous acceptance by them at the time of import of two sample spinnerettes, of the description as given by the party would not be any bar in reviewing the classification, in coming to a correct decision, which both the lower authorities have done after full application of mind, with reference to the description and details given in the documents, and after full consideration of the Tariff Entries, read cumulatively, coupled with the elucidation furnished by the Explanatory Notes to the CCCN. We do not, therefore, find any ground to come to a differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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