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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 ..... ation no. 12/2012-Cus dated 17.03.2012. The product technical data sheet describes the product as "Esmalte" in Spanish Language whereas in English it has been shown as "Glass Frit". The actual English meaning of 'Esmalte' is Glass or enamel and thus the certificate provided by the supplier is self contradictory and misleading. In some imports which contained product technical data sheets the description in the bills of entry is 'Frit' which is matching with the description given in the Product Technical Data sheets. However in case of some other imported goods, the product is described as Glass Frit in the concerned Bill of Entry and the invoice but the same product has been described as Glaze/ Esmalte in the concerned product technical 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 Rs. 2,19,03,788/- from the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of different grades of Glass Frit. The demand was raised by terming the imported goods as Vitrified Glaze and changing the classification. Such conclusion was reached on the ground that "from the description of the products mentioned in the Bill of Entry and Invoices vis-à-vis description of goods in Product Technical data sheet, it was revealed that the description of goods and bill of entry, invoices and product technical data sheet matched in respect of some products as Glass Frits and hence these products are not in the subject matter of the show cause notice." He submits that even mere "Glaze" is not classifiable under CTH 32072010 and it is only "Vitrified Glaze", which is classifiable under said Chapter Tariff 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 4. He also relies upon the HSN Explanatory Note for Ch. 3207 qua Vitrifiable Glaze and Frit to submit that while technically there may be thin line between Glaze and glass frit, however the explanation to the term Glass Frit in the HSN Explanatory Note clearly shows that the Glass Frit is an intermediate stage / preparation to make vitrified glaze and it is only after preparing the Glass Frit suitably for further use for glazing that it can be considered to be a vitrified glaze. In the instant case, the products are mainly Glass Frits and only some marginal raw material to make Glaze Frit were added in powder form with the Glass Frit per se does not mean that the product is held to be vitrified 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 215, VPI-9235, VPI-9240, VPI-9305, VPI-9310, VPI-9335, VPI-9340, VPI-9345, VPI-9350, VPI-9355, VPI-9360, VEI-1001 and VEI-1002, the Appellant mis-declared, mis-classified the goods as the same were Glaze. The product technical data sheet provided by the manufacturer is a technical literature of the product indicating the description of the product, its content along with other technical parameters. The statements of Shri Vishal G. Trivedi were never retracted by him at any stage. 6. He has also admitted that they had imported the goods as described in the product technical data sheet and admitted short-payment of custom duty on Glaze. The Glass frit and Glaze are distinct 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 manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials becomes Glaze. In classifications matters, the nature and content of the product along with relevant tariff entry are the basis of classification of the product whereas we find that the revenue has not conducted/ undertaken any such exercise. Not only the nature of the product, it was very well open for the revenue to investigate as to how the imported product was put to use. Merely on the basis of the statement, the classification of the product cannot be fixed. The Custom Tariff Entry 32072010 is for "Vitrifiable Enamels and glaze", which means that the 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct technical data sheet relied upon by the Revenue does not show presence of such materials in the impugned goods. Further the HSN Explanatory Note for Chapter 3207 qua vitrifiable glazes and frit, states as under :- "(2) Vitrifiable enamels and glazes are mixture of silica with other products (feldspar, kaolin, alkalies, sodium carbonate, alkaline -earth metal compounds, lead oxide, boric acid, etc) giving a smooth surface, either matter or glossy, by vitrification under heat. In most cases, some of the constituents 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 prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Derivation : A standard glass formula, to which a nucleating agent such as titania has been added, is melted, rolled into sheet, and cooled. It is then heated to a temperature at which nucleation occurs, causing formation of crystals. See also nucleation. Uses : Range and stove tops; laboratory bench tops; architectural 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted the specific classification sought for by the Revenue and satisfied the ingredients of this heading. In 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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