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TMI Blog2023 (11) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... the clarification given by the appellant, the adjudication order was passed holding that the imported goods namely CFG having merit classification under CTH 7005 2990 and consequently the same is not covered under Sl.No.934(I) of the Notification No.046/2011-CUS dated 01.06.2011 and the benefit thereof is not available to the appellant. Aggrieved from the said orders, the appellant preferred appeal before the Ld.Commissioner(Appeals), who dismissed the appeals filed by the appellant. Against the said orders, the appellant is before us. 3. The Ld.Counsel appearing for the appellant submits that although no test report was sought for the impugned Bills of Entry but the adjudicating authority has considered the test report dated 04.02.2019, wherein CFG was imported from the same supplier who has supplied the goods to the appellant which clearly depicts that the goods were having absorbent layer (tin) but the benefit of Notification No.046/2011-CUS dated 01.06.2011 was denied. 4. The adjudicating authority has observed as under:- "14. The issue is to decide whether the said goods will fall under the declared CTH "70051090" or any other CTH. No absorbent layer other than tin layer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass." 17. It appears that the importer is considering tin layer as absorbent layer. A tin layer is an essential part of all float glass because of the manufacturing process of float glass. The test report (of identical product) submitted by the importer does not mention that goods have an absorbent layer reflecting or otherwise. The report only mentions tin layer which is supposed to be found in every float glass. In fact presence of tin layer may be good criteria to identify that a glass is float glass. Hence, the contention that tin layer is absorbent layer does not appear acceptable and goods may be treated as having no absorbent layer. 18. Further, test reports also revealed that the glasses are neither "tinted" nor "wired" nor IR absorbent. Hence, the possibility of classifying the glasses under CTH 70052110 (meant for tinted) or under CTH 70053010 (meant for wired glass) was also ruled out. Therefore, the impugned goods ideally merit classification under CTH 70052990 - "Others". 5. It is the submission of the Ld.Counsel that to decide the issue of classification, the onus is on the department. To support this contention he relied on the following decisions:- 1. D.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi India Glass Limited vide Order No.DII/ ICD/PPG/861-863/2022-23 dated 20.07.2022 held the merit classification of the impugned goods as CTH 7005 1090. He also relied on the order passed by the Ld.Commissioner(Appeals) in the case of M/s. Rider Glass Industries Pvt.Ltd. vide Order-in-Appeal No.NOICUSTM- 000-APP-400-2022-23 dated 09.03.2023. Therefore, he prayed that the impugned orders are to be set aside and merit classification of the impugned goods to be held as 7005 1090 and consequent to that the appellant is entitled to get the benefit of Notification 046/2011-CUS dated 01.06.2011. 11. On the other hand, the Ld.AR for the department supported the impugned order and submits that the classification of the impugned goods has been done on the basis of the audit objection raised. Therefore, the correct classification of the impugned goods is 7005 2990. 12. Heard the parties, considered the submissions. 13. Before deciding the issue, we have to see the manufacturing process of the impugned goods which is discussed as under:- i. The various raw materials including silica are melted in a furnace at a very high temperature and the raw materials melt in a molten glass in the furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nwired glass. By conjoint reading of the above note 2(c) and the manufacturing process, it can be inferred that CFG would have microscopical layer of metal, namely tin, which is an absorbent layer as contemplated under the above said Chapter Note 2(c). Hence, the correct classification of the impugned goods is under CTH 7005 1090 of Customs Tariff Act. 17. We further find that the manufacturers in India of the identical goods namely M/s. Saint-Gobain India Pvt.Ltd., M/s. Goldplus Float Glass are manufacturing and clearing CFG under CTH 70051090 of the CTA and the same has been accepted by the department. 18. We further find that the impugned proceedings were initiated against the appellant on the basis of Audit Para holding that the Float Glass invariably a layer of Tin on one side, which does not mean that all Float Glass to be classifiable under 7009 1090. 19. We find that the appellant sought reply under RTI dated 17.07.2023, wherein the question was raised that it is observed that in some of the Report, no other layer other than Tin layer is found on one side of the Glass which is fluorescent is mentioned. Whether such layers are reflective or not-reflective and whether such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Cooperation, Ministry of International Trade and Industry (MITI, hereinafter), stating that they had been requesting the clear float glass exporters to provide an advance ruling/document of the Government of India or from Royal Malaysian Customs confirming the correct HS code. It appears that M/s. Kibing Group (M) Sdn. Bhd. has obtained a letter from the Royal Malaysian Customs dated 12.03.2021 confirming the classification of clear float glass under HS code 7005.10.09, and therefore, MITI has allowed KGM to apply for a COO with exporting and importing HS code of 70051090. This letter goes on to state that unless M/s. Xinyi produces a similar document, their application with different exporting and importing tariff code cannot be approved." 22. Further, in the case of M/s. Chandrakala Associates (supra), again the Advance Ruling Authority has examined the issue and observed as under:- "10. I have considered all the materials placed before me for the subject goods. I have gone through the submissions made by the applicant during personal hearing. In the absence of any comment from the jurisdictional Principal Commissioner/Commissioner of Customs, on the impugned subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throughout the mass (body tinted) opacified, flashed or merely surface ground: 70052110 --- Tinted. It is pertinent to mention that w.e.f. 01.01.2020 (as amended vide Finance Act, 2019 and made applicable as per Notfn.89/2019-Cus (N.T.), dated 10.10.2019), the sub-heading700521 was amended to read as under:- "....Coloured throughout the mass (body tinted), opacified, flashed or merely surface ground.". Thus, specifically a comma was inserted in the said sub-heading. The said amendment was not given retrospective effect. 5.4.1 Chapter Note 2 of chapter 70 is reproduced below - "2. For the purposes of headings 7003, 7004 and 7005: (a) ............................ (b) .......................... (c) The expression "absorbent, reflecting or non-reflecting layer' means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infra-red light or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass." 5.4.3 A Plain reading of CTH 7005 would reveal that 700510 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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