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TMI Blog1984 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... d, consequently, they are not excisable. On the rejection of the request for re-classification, the Appellant carried the matter in Revision to the Government of India. In disposing of the said Revision, by the order dated 16-2-1967, the Government directed an examination of the matter on merits (Exhibit D to the Revision Application); (d) on such examination, the Assistant Collector, by his order dated 31-5-1976, came to the conclusion that the tiles, in question, are building material and cannot be classified as Glassware under Item No. 23A(4) of the First Schedule to the Act. He held, inter alia that :- (i) ordinary glass and the tiles in question are distinct from each other, though identical raw material is made use of in their manufacture to a great extent; (ii) the Deputy Chief Chemist in his opinion was uncertain and required the views of the trade to be elicited before deciding the issue as to whether the tiles can be said to be other glassware ; (iii) on the evidence adduced from the trade as well as upon independent enquiry (Supdt. s letter No. CEX 20/76/903, dated 21-5-1976) it would appear that the Appellant s products are not available with those who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are not glass. He had not, however, given any reasons; (iii) the essential raw material for the manufacture of glass like, for example, silica, soda, lime and potash etc. are made use of in the manufacture of Appellant s product as well. Non-user of dolomite or borax in the Appellant s product accordingly, does not negate their classification as glass or glassware . Similarly, the state of the molten matter, degree of heat or blasting of furnace are irrelevant in the consideration of the identity of the Appellant s product with the description in First Schedule glass or glassware ; (iv) it is not correct to say that the manufacture of glass is necessarily incomplete unless the fusion of silica with other raw material was completed. These days nucleated glass is being manufactured which is crystalline in nature; (v) the test report on the Appellant s product is for the same reason without any force. On the contrary, the opinion of the Chemical Examiner classifying the product as other glass appears to be correct; (vi) the marketing of the products in question as Vitrum Venetian Type glass mosaic by advertisement by the Appellate gives the lie direct to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f nucleated glass or crystalline glass to the exclusion of evidence on record including a test report on the products in question from the National Chemical Laboratory (Exhibit I annexed to the Revision); (d) evidence from the trade was also erroneously discarded on the ground that the product was advertised by the Appellant as Vitrum Venetian mosaic , although the Appellant had never so advertised. Nor can the advertisement be used as evidence against the Appellant in violation of the principles of natural justice without any notice whatsoever to the Appellant. Further, the way an assessee may advertise its product for attracting customers cannot afford any criterion for classification of the goods in question under one or the other of the items in the First Schedule to the Act. [Reliance upon 1980 E.L.T. 280 M/s. Blue Star Limited v. Union of India] ; (e) classification under the various items of First Schedule to the Act is to be determined solely by trade usage as laid down by the Supreme Court in a number of decisions; [Reliance upon AIR 1981 S.C. 1079 = ECR C 580 S.C. = 1981 E.L.T. 325 - Indo International Industries v. Commissioner of S.T., U.P.; ECR C 476 S.C. = 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 2374 - (M/s. Bellpunch (India) Pvt. Limited v. Collector of Customs, Calcutta)] ; (b) technically, glass is an amorphous, undercooled liquid of extremely high viscosity which has all the appearance of a solid. It is a ceramic material consisting of a uniformly dispersed mixture of silica (75%), soda ash (20%) and lime (5%), often combined with such metallic oxides as those of calcium, lead, lithium, cerium, etc. It can be used for structural building blocks (Reliance upon page 498 Edition Revised by G.G. Hawley). This being so, having regard to the raw material used as well as the technique of manufacture of the Appellant s products there is nothing unreasonable in classifying them as glass in terms of Item No. 23A of the First Schedule to the Act ; (c) The Appellate had advertised the product as glass; (d) in quite a few decisions of the various High Courts, it has been uniformally held that glassware included within its ambit all articles of glass [Reliance on AIR 1965 Mad 312, 1978 STC 9, 16 STC 452, 25 STC 100, 38 STC 93, 46 STC 92]; (e) in AIR 1981 SC 1079, relied upon for the Appellant, the competing entries that were considered for a determination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in Indo-International Industries v. Sales Tax Commissioner, U.P. (A.I.R. 1981 S.C. 1079 = 1981 E.L.T. 325 (S.C.) If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment, the meaning of the term in common parlance or commercial parlance has to be adopted. (b) to the same effect was our observation in the dissenting opinion expressed in the case of Indian Cable Co. Ltd. v. Collector of Central Excise = (1984 E.L.T. 434 = 1984 ECR 552). To recapitulate, it is excisable goods produced or manufactured in India that are subjected to levy of excise at the rates set-forth in the First Schedule to the Act (Section 3 of the Act) Excisable goods are those specified in the First Schedule to the Act. Once, therefore, an article is, admittedly, named or clearly described or defined in the First Schedule to the Act it becomes assessable to duty provided the intent of the legislature in regard to its levy is manifest, regardless of whether there has been, indeed, a manufacture as understood in law, and the product is known in the market. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble upon manufacture of the goods specified in the First Schedule; (ii) goods are those that are ordinarily bought and sold in the market and accordingly known to the market. Consequently, commercial usage or parlance becomes relevant for construing the items in the First Schedule regardless of whether so specified or not in the Schedule itself, when the goods cannot be identified from the definition or description in the Schedule; (f) accordingly, in the decision of the Supreme Court in A.I.R. 1981 S.C. 1079 = 1981 E.L.T. 325 S.C. (referred to supra) it was held that, although glassware generally comprehends all articles made of glass, clinical syringes, for example, cannot, in commercial parlance, be considered as glassware; (g) the aforesaid decision of the Supreme Court cannot be distinguished on the ground that the competing entries that came up for consideration were glassware and hospital equipment or on the ground that the Sales Tax Act and the Excise Act being different, the ratio of a decision on a question arising under the Sales Tax Act cannot apply to a case under the Central Excises and Salt Act, when their Lordships had categorically observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revised is discharged. We hold that the Appellants product cannot be classified under Item 23A of the First Schedule to the Act. [Order in dissent per : H.R. Syiem,]. - 7. There has not been much effort from the side of the appellants, namely, M/s. Empire Industries Limited to disprove the Board s claim that the tiles were glass or glassware. The most it has done was to refer to a certificate given by the National Physical Laboratory, Poona which reports as below- We have taken X-ray picture of; (i) A pure glass (no diffraction line); (ii) A pure crystalline material (diffraction lines present); and (iii) Two samples from the party (A few diffraction lines) On comparison it can be seen that the samples have some of crystalline material some glassy phase is also present. We are enclosing herewith 4 X-ray diffraction patterns. 8. This report makes a distinction between a pure glass and a crystalline material, the first showing no diffraction lines and the second showing diffraction lines. The appellants samples on test were reported to show a few diffraction lines. The report mentions that the samples had some crystalline material and that some glassy phase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them by those dealing in them. In this judgment, the Supreme Court said that in popular or commercial parlance a general merchant dealing in glassware does not ordinarily deal in articles like syringes, thermometers, lactometers, which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. The Court accordingly ruled that clinical syringes would not be considered as glassware falling under Entry 39 of the First Schedule of the U.P. Sales Tax Act. 12. However, the following significant sentences appear in the Supreme Court judgment Having regard to the aforesaid well-settled test, the question is whether clinical syringes could be regarded as glassware falling within Entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression glassware is articles made of glass (See: Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility. 13. The Supreme Court came to this decision clearly, because it was of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Collector is, evidently, ignorant of the fact that soda, lime and silica still form 90% of all the glass in the world as they did 2000 years ago. 16. There is little doubt that the Vitrum Venetian Tiles can be appropriately assessed under Item 23A as glass and glassware. 17. I reject the appeal. [Order per assent by : G. Sankaran]. - 18. The following considerations are relevant and important in coming to a conclusion on the classification of the subject goods in the Central Excise Tariff Schedule (i) The Assistant Collector, in his order of 31-5-1976, had recorded a clear finding on the basis of the evidence submitted by the appellant as well as the independent enquiry conducted by Range Superintendent of Central Excise that the subject goods were not available with wholesalers who dealt in glassware but were available with dealers who dealt in building materials like floor tiles, cement, sand, chuna, etc. It is also seen from the Board s order dated the 13th March, 1981 that the appellants had produced before the Board eight affidavits from practising architects, buyers and dealers of the appellant s product testifying that product was available in the marke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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