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TMI Blog2019 (4) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... vitrifiable glaze shall be classified in the said Chapter heading. The CTH 32074000 is for glass frit and other glasses in the form of powder, granules and flakes. As per the adjudicating authority and the Revenue itself, the major difference between the glass frit and glaze is physical properties and appearance. When such a view has been taken by the adjudicating authority, in that case, he should have described / discussed the physical properties and appearance of the goods to finalize the classification of the impugned goods, which was not done. The HSN Explanation considers Glass Frit as the intermediate / preparation to make vitrifiable glaze and after preparing the glass Frit, suitable for further use for glazing, it can be considered as vitrifiable glaze - In the present case, as informed by M/s Vidres S.A., Spain, the product in question is merely glass frit and some additional marginal raw materials, which were added in powder form. Only on this basis it cannot be concluded that it is Vitrified glaze. Also as per the email of supplier, the addition of raw materials to already formed Glass Frit is to cater to the various requirement of each individual customer. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l data sheet. The SCN relied upon statement of Shri Vishal Ghanshyam Trivedi, Managing Director of Appellant concern that in case where they had imported glaze, the appellant in collusion with the supplier has shown the same as Glass Frit. It was alleged that the Appellant had imported 36 products which are Glaze but the same has been wrongly shown as Glass Frit. The show cause notice demanded differential duty of ₹ 2,19,03,788/- from the Appellant along with penalty and confiscation of imported goods. Penalty was also proposed upon the director Shri Vishal Ghanshyam Trivedi. The demands and penalties as proposed were confirmed/ imposed vide the impugned orders. The Adjudicating authority relied upon the Product Technical data sheet where the products were described as Esmalte and statement of director and held that as per the statement of Shri Vishal G Trivedi, glass frit is manufactured by mixing various raw materials like feldspar, quartz, borax, aluminia, barium carbonate, zircosil, zinc oxide and then melting them in a kiln at temperature of 1400 degrees. The molten lava from kiln is drenched into water where it assumes the form of crystals which is called glass frit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading as per Indian Customs Tariff and HSN explanatory note itself. Not a single evidence, either in the SCN or in the impugned order, that the product in question are invariably Vitrifiable Glaze has been adduced. In absence of such evidence, it is absolutely clear that the Revenue has not discharged its burden of proving whether the product is actually Vitrifiable under any specific chapter heading, which are required the Glaze to be vitrifiable. There is no allegation or finding about the vitrifiable nature of the product and in absence of same, the impugned order holding the goods classifiable under 32072010 cannot be upheld. 3. He relies upon the Hon ble Apex Court judgment in case of Parle Agro Products Pvt. Ltd 2017 (352) ELT 113 (SC) to submit that entries having technical meaning cannot be determined and classifiable based on commercial nomenclature or trade understanding as the same is in-applicable. Technical and scientific meaning is required to be looked into before classifying such products and that the onus of proving the classification of goods is on Revenue Department and they have to prove that the particular goods fall under particular Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed glaze. He also draws our attention to the manufacturing process to canvas his point that additional raw materials are required to already formed Glass Frit to cater to varied requirement of each individual customer, which does not mean that the product was already vitrified ceramic glaze at the time of import. This crucial aspect has not been considered in the impugned order and, thus, it cannot be concluded that CTH 32072010 is applicable to the imported goods. He also relies upon the ruling of US Customs Authorities on identical product to submit that such ruling of other countries have persuasive value. 5. Shri. T. G. Rathod, Ld. Joint Commissioner (AR) appearing for the Revenue reiterates the findings of the impugned order. He further submits that during the course of search three product technical data sheets pertaining to the product VEI-1125, VEI 1001 and VEI 1002 were obtained through e-mail from the Spanish supplier of goods. The product was described as ESMALTE in Spanish whereas the same has been described as Glass Frit in English language. From ascertaining the meaning of the Spanish words used in the product data sheet, it was revealed that the Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inct products having different physical properties and are classified under different chapter heading. The goods based on its content and use is clearly defined in business parlance are either Glass Frit or Glaze. The manufacturer has themselves described the product as Glaze and there is no contrary evidence brought on record by the Appellant to prove that the same were Glass Frit and not Glaze, as alleged by the Department. The manufacturer possess the highest degree of expertise with regard to the product manufactured by them and also at no point of time of investigation, the classification of the goods by the Department was contested by the Appellant so as to invite expert opinion in the matter. They had also revised classification of the pending import cargo and also paid the differential duty in the matter. In view of the product technical data sheet and the statement of Shri Vishal G. Trivedi, the goods are to be classified as Glaze liable for 7.5% custom duty instead of 5% paid by the Appellant by describing the goods as Glass Frit. 7. Heard both the sides and perused the case records. The controversy in the present appeals is on the issue whether the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for glass frit and other glasses in the form of powder, granules and flakes. 9. As per the adjudicating authority and the Revenue itself, the major difference between the glass frit and glaze is physical properties and appearance. When such a view has been taken by the adjudicating authority, in that case, he should have described / discussed the physical properties and appearance of the goods to finalize the classification of the impugned goods, which was not done. In case of Sarna Sales Pvt Ltd 2013 (295) ELT 724 (Tri), the Tribunal, while dealing with the classification of the goods, has held that in the absence of technical test report, the classification cannot be presumed. Similar view was taken by the Tribunal in case of Tamil Nadu Newsprint Papers Ltd 2010 (253) ELT 153 (Tri). The Hawley s Condensed Chemical Dictionary relied upon by the Appellant has described the product Glaze, Frit and Vitrification as under :- Glaze : A mixture similar to porcelain enamel, applied to a ceramic substrate. It may refer to (1) a vitreous coating on pottery or enamelware; (2) the mixed dry powder of the batch to be used for the coating or (3) a wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituents have been fused together in a preliminary process and are present in the mixture in the form of powdered frit. They may be transparent (whether or not coloured) or rendered opaque by the addition of opacifiers or pigments: sometimes substances (e.g. titanium or zinc oxides) are added which produce decorative crystalline effects on cooling after the firing. These vitrifiable enamels and glazes are generally in the form of powders or granules. (5) Glass Frit and all other varieties of glass (including vitrite and glass obtained from used quartz or other fused silica) in the form of powder, granules or flakes; whether or not coloured or silvered. These products are used in the preparation of coating for ceramic, glass or metal articles as well as for other purposes. For example, frit used in the preparation of the vitrifiable products referred to in paragraph (2) above. Glass powder land granules are sometimes sintered to form dises, plates, tubes etc. for laboratory use. Vitrite is generally used for insulating electrical parts (e.g. contact terminals for electric lamp caps). Other va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hitectural panels; restaurant heating and warming equipment; telescope mirrors. Glaze. A mixture similar to porcelain enamel, applied to a ceramic substrate. It may refer to (1) a vitreous coating on pottery or enamelware; (2) the mixed dry powders of the batch to be used for the coating; or (3) a water suspension of these materials (wet glaze). Glazes must be low in sodium and are usually mixtures of silicates and flint, lead compounds, boric acid, calcium carbonate, etc. See also frit; procelain enamel. Porcelain enamel. A substantially vitreous inorganic coating bonded to metal by fusion above 426oC (ASTM). Composed of various blends of low sodium frit (q.v.), clay, felspar and other silicates; ground in a ball mill and sprayed onto a metal surface (steel, iron or aluminum) to which it bonds firmly after firing, giving a glass-like, fire-polished surface. Properties : High hardness, abrasion and chemical resistance except to HF and hot, strong `caustic; low expansion coefficient; corrosion-resistant; stable to heat-stock; easy to clean and decontaminate. Uses : Chemical reaction equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case the revenue has not placed any evidence in the form of test report or the use so as to decide whether the goods in question are Glaze . Even the Tribunal in the case of 20 Microns Ltd - 2013 (288) ELT 120 (Tri) has held that merely addition of some calcium carbonate to marble rocks while grinding/ pulverizing the same, since the chemical composition of both products remained same, it does not amounts to manufacture of new product and the classification cannot be changed based on dominance of the product contained. In the instant case the predominant material is glass frit and thus going by the General Rules for Interpretation viz. Rule 2 and 3, the impugned goods deserves classification as frit only. 12. Further in case of Tamil Nadu Newsprint Papers Ltd. Vs. Comm. 2010 (253) ELT 153 (TRI), the tribunal has held that in absence of any chemical test, there is no basis to change the classification. In case of Collector Vs. Madhusudan Ceramics, the tribunal has held that glazing material cannot be classified under heading 32.07 of the CETA, 1985 as it cannot be considered as vitrifiable glaze or ceramic glaze. It further held that no evidence w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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