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TMI Blog2017 (4) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.90 till 27.02.2005 and thereafter under CTH 44091090 attracting 16% advalorem duty. 3. In appeal No. E/296/2007, SCN dated 29.06.06 was issued to the appellants proposing classification of "Borotik Board" under chapter sub heading 4405.90 till 27-02-2005 and thereafter under 44091090, attracting duty liability of 16% advalorem, recovery of central excise duty of Rs. 6,02,411/- on the said Borotik Boards produced and cleared during April 2003 to March 2006, under proviso to Section 11A of the Central Excise Act, 1944 invoking extended period, interest liability thereon and penalties under Section 11AC ibid and Rule 25 of the Central Excise Rules. The matter was adjudicated by the Commissioner of Central Excise, Tirunelveli, who vide his Order-in-Original dated 03.01.2007 (impugned order for this appeal), upheld these proposals and imposed equal penalty of Rs. 6,02,411/- under Section 11AC of the Act and a further penalty of Rs. 60,000/- under Rule 25 of the Central Excise Rules. Hence appeal No. E/296/2007. 4. In appeal No. E/290/2009, SCN dated 9.4.2007 was issued to the appellants proposing classification of the said Borotik Boards under chapter heading 44092090 of CETA (erst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thwise and edge glued widthwise. He further submitted that the resultant board was correctly classifiable only under erstwhile CTH 4403 (present heading 4407). He placed reliance on the Tribunal's decisions in the case of CCE, Calicut Vs. Rubco Haut Woods (P) Ltd. - 2007 (210) E.L.T. 710 (Tri. - Bang.) and submitted that the ratio of the said decision is very much applicable to them. Ld. Advocate also raised the issue of limitation and pointed out that the department had already adjudicated the matter as regards classification of the items manufactured by the appellant in the past, hence, it could not be said that the department was not aware of manufacturing activities carried out at appellant's premises. In absence of any wilful suppression or mis-statement to evade payment of duty, the extended period of limitation could not have been invoked. Hence, the entire adjudication proceedings are hit by limitation. 7. On the other hand, Ld. A.R Shri S. Nagalingam (A.C) reiterated the correctness of the impugned orders and maintained that the product in question merit classification only under erstwhile chapter heading 4405 (present heading 4409 w.e.f. 28/02/2005). Revenue also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for Chapter 44, the following notes are worth reproducing:- General Notes to Chapter 44 This chapter covers unmanufactured wood, semi-finished products of wood and in general, articles of wood. These products may be grouped broadly as follows : 1) .. 2) Sawn, chipped, sliced, peeled, planed, sanded, end- jointed, e.g., finger-jointed (i.e. jointed by a process whereby shorter pieces of wood are glued together end to end, with joints resembling interlaced fingers in order to obtain a greater length of wood) and continuously shaped wood (heading 44.07 to 44.09) 3) 4) . The following Notes are also found under HSN heading 44.07: "With a few exceptions, this heading covers all wood and timber, or any length but of a thickness exceeding 6 mm, sawn or chipped along with general direction of the grain or cut by slicing or peeling. Such wood and timber includes sawn beams, planks, flitches, boards, laths, etc., and products regarded as the equivalent of sawn wood or timber, which are obtained by the use of chipping machines and which have been chipped to extremely accurate dimensions, a process which results in a surface better than that obtained by sawing and which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of picture frames, decoration of walls, furniture, doors and other carpentry or joinery. (5) Rounded woods such as drawn woods, which are very thin rods, generally of round section, of a kind used in the manufacture of certain types of match splints, pegs for footwear, certain types of wooden sun-blinds (pinoleum blinds), toothpicks, cheese-making screens, etc. Dowelling in the length, being round wooden rods or poles of a uniform cross-section, generally ranging in diameter from 2 mm to 75 mm and in length from 45 cm to 250 cm, of a kind used, e.g., for joining parts of wooden furniture, is also classified in this heading. The heading also covers strips and friezes for parquet flooring consisting of narrow pieces of boards, provided they have been continuously shaped, e.g., tongued and grooved. If they have not been worked beyond planing, sanding or end-joining, e.g., finger-jointing, they fall in heading 44.07. (emphasis supplied)" 13. From the process of manufacture and flow chart, submitted by the appellant themselves, which is also not disputed by Revenue, it is evident that the following processes are definitely carried out on the Rubber wood by the appellant :- * Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of rubber are cut to the desired lengths, planed and the ends of the sawn and planed scantlings are then joined lengthwise in a finger jointer. The finger jointed scantlings are then glued sidewise with the help of clamping devices to make broader planks and the finished product is referred to as BOROTIK board. I do not find anything in the HSN under 44.07 in support of assessee's favour. Under the circumstances I classify the impugned product, ie., BOROTIK board under Chapter 44.09, which attracts central excise duty at the rate of 16% ad valorem. It is not known how the said authority has arrived at this conclusion since there is no such mention in the HSN Explanatory Notes to heading 4409. So also, in OIO dated 3/01/2007 (impugned order) in appeal No. E/296/2007, the adjudicating authority has decided the classification of the said Borotik Boards under the heading 4405.90/ present erstwhile heading 4409 w.e.f. 28.02.05 interalia for the reasons that the said heading covers timbers particularly in the form of boards, planes etc., which after sawing, scantling, has been continuously shaped along any of its edges/faces either to facilitate subsequent assembling. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is classification under sub-heading 4403.00 which reads as : "Wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, or a thickness exceeding 6 mm." However, Revenue contended that the items would be classified as Articles of Wood, not elsewhere specified under 4410.90 as Other. The said classification meant payment of duty at the rate of 4% adv. without CENVAT or @ 16% adv. with CENVAT, vide Notification No.10/2002 dated 1-3-2002. The lower authority, after detailed examination of the issue, came to the conclusion that the items are correctly classified under 44.03 and thereby dropped the demands. Revenue filed an appeal to the Commissioner (Appeals) contending that the proper classification would be under 4410.90. The main ground for appealing against the decision of the Commissioner (Appeals) is that the appellants in the present case, have undertaken certain processes other than planing, sanding or finger jointing and by virtue of HSN Notes, they would not fall under HSN heading 44.07, which corresponds with the Excise classification 44.03. The Commissioner (Appeals), after a very detailed examination, has not accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andaman Timber Industries, the same issue was raised in 1998 and the Assistant Commissioner, in his order dated 28-4-1999, held that FJEGP and LSB would fall under 44.03. The Show Cause Notice was dropped. Revenue has accepted the same and the Commissioner has neither reviewed the orders nor filed any appeal. As per the HSN, the following. Articles of Wood are listed. (i) Wooden frames (ii) Packing cases, boxes, etc. (iii) Casks, barrels, etc. (iv) Tools, tool bodies, handles etc. (v) Table ware & kitchenware of wood (vi) Jewel boxes, statues etc. 5. We have gone through the records of the case carefully. After seeing the samples, we are not impressed with the Revenue's argument that the items are Articles of Wood. We agree with the lower authorities that an Article of Wood is an end product. Both the lower authorities have examined the issue in depth. The Commissioner (Appeals) has brought out the HSN Explanatory Notes in para 11 of his order and has stated that nowhere the Explanatory Notes preclude classification of such wood under this heading if it is subjected to the process of gluing, edge-wise or face-wise. Further, on reading the Tariff description under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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