9911796707
TMI Blog2024 (4) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... f CGCRI, Kolkata pertaining to this appellant, it is observed that the report mentions about the presence of An absorbent layer (Tin) is observed on one side of the glass which is fluorescent under UV illumination for both the glasses . At the same time, it is observed that the test report does not say that the glass has undergone any coating process. This Tin layer on one side which fluoresce under UV illumination is not the result of applying any coating on clear float glass, but actually inherent to the production of Float Glass - the write-up on float process by Sir Alastair Pilkington states that modified properties are produced by means of surface coatings whereby a microscopically thin coating on glass is applied by chemical vapour deposition technology; the write-up under UQG Optics refers to application of secondary process of laminating, tempering, coating, etc., to meet specific optical requirements; the write-up under FOSG suggests adding colour to the glass during the manufacturing process to achieve tint and solar radiation absorption properties. As the said test report does not mention that the glass has undergone any such coating, the glass does not have an absorben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounced by the Appellate Authority under Chapter XVII of the Act shall be binding only,- (a) on the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b) on the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104(1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are in pari materia and have the same provisions in like matter and differ from each other only on few specific p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he presence of tin on one side of the glass is by default on account of manufacturing process, and not by design or intended to add a layer with any of the properties such as absorption or reflection or non-reflection. Thus the tin layer is incidental to the manufacturing process of float glass and is not used in float glass process with the specific objective of providing any absorbent properties. The float glass has not undergone any coating process for presence of an absorbent, and all such types of glass which are manufactured under the float process invariably would contain a layer of tin on one side, which does not mean that the float glass is to be classified under 7005 10. Further, as it is also not coloured throughout the mass (body tinted), opacified, flashed or merely surface ground, the item would not be covered under the sub-heading 7005 21. Hence the appropriate classification for clear float glass would be under the tariff sub-heading 7005 29 as Others . At the eight digit level, if the item is tinted , it would be classifiable under the CTH 7005 2910 and if the item is non-tinted , it would be classifiable under CTH 7005 2990. 3.3. Aggrieved of the above decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods and the presence of tin layer, the total disregard with respect to the test reports relied upon by the Appellant as in the findings of the Learned Authority in paragraph 6.10, is not sustainable. Further, when the test report pertains to the same goods imported from the same manufacturer, it is permissible to place reliance on the previous test report taken. With respect to the finding that the advance rulings will apply only to the applicant who had sought it, it is stated that they have persuasive value and that the same has been observed in the case of Cyril Eugene Pereira, in Re. [(1999) 239 ITR 650] and in the case of Union of India Anr. V. Azadi Bachao Andolan Anr [(2003) 263 ITR 706 at 742]. The finding of the Learned Authority in paragraph 6.12 that the Bills of Entry is assessed and the Appellant herein has accepted and paid duty is factually incorrect, as the Appellant has reportedly been disputing the classification proposed by the Department and have been paying the duty under protest. Further the finding of the Authority that the Appellant has to accept the classification proposed by the Customs authorities has no legal sanctity. The classification of Float Glass f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved in the appeal is covered by the decision of the Hon ble Tribunal in the case of M/s. Bagarecha Enterprises Vs. Commissioner of Customs, Kolkata [Order dated 03.11.2023 passed in Appeal Nos. C/75536 to 75538/2023], wherein it was held that the presence of tin layer on the clear float glass is sufficient to classify the same under CTH 7005 1090, which squarely applies to the instant case. It has also been stated that the representative of the appellant had filed an application dated 20.06.2023 with M/s. Central Glass and Ceramic Research Institute (CSIR), Kolkata, wherein one of the queries raised was whether the test reports given by the said institute is relating to the existence of observant tin layer on one side of the clear float glass. The institute vide their reply dated 17.07.2023 have clarified that the float glass tested by them contain any absorbent tin layer on one side and it has been clarified by the Institute that the presence of absorbent tin layer would mean that the float glass has an absorbent and non-reflective layer. Hence, the Appellant prayed that the Hon ble Appellate Authority for Advance Ruling may be pleased to set aside the impugned order No. 115/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue. The Authority for Advance Ruling did not dispute the fact that the subject goods have tin layer on the one side. The Central Glass and Ceramic Research Institute, Kolkata in their RTI reply dated 17.07.2023 have stated in response to question No. 6 as follows- 6. It is observed in some of the reports that 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 layers are absorbent or not. Response: (a) Not-reflective (b) Absorbent (UV) The Directorate General of Anti-dumping and Allied Duties, Department of Commerce, Ministry of Commerce 8s Industry has issued a Final Findings dated 10.10.2014 in respect of imposition of anti-dumping duty of clear float glass originating in or exported from Pakistan, Saudi Arabia and UAE. In paragraph 16 of the said Final Findings, it has been categorically stated that the classification of clear float glass at the eight digit level is 7005 1090. This also conclusively establishes the understanding by the Ministry, The Advance Ruling issued by the Customs Authority for Advance Ruling in the case of in the case of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration the audit objection by CERA/CRA reply of the department as referred above, reply of the party, relevant legal provisions, case laws on the subject and relevant circulars of the board if any. It could be seen that the Proper Officer of Customs has thrown all the cardinal mandates laid down for adjudication as per the above said circular to wind and had proceeded to confirm the classification of the impugned CFG under CTH 7005 29 90, which needs to be set aside, on this score alone. Needless to mention that, perusal of the impugned order, has no reference whatsoever neither to the ATN nor any reply by the importer etc., which demonstrates the above averment of the importer and thus, would render the entire adjudication proceedings void ab initio. The appellant had also submitted that in respect of the re-assessment made by Customs, the Appellant has filed an appeal before the Customs, Excise Service Tax Appellate Tribunal (CESTAT) and the said appeal has been posted for final hearing on 27.03.2024. They have enclosed a copy of the STAY/MISC Order dated 17.01.2024 passed by the Hon ble CESTAT and have requested alternatively to keep the present appeal proceedings pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absorbent, as long it has a coating of tin metal, irrespective of whether such coating is applied during the manufacturing process or subsequently. iv. The tin layer acts as an absorbent layer and therefore, the subject goods satisfies the requirement under Note 2(c) to Chapter 70, in order to merit classification under CTH 7005 1090. v. The Test Report of the Central Glass and Ceramic Research Institute, Kolkata, obtained by the Department, clearly mentions the description of goods and the presence of tin layer. vi. Further, the Central Glass and Ceramic Research Institute, Kolkata in their RTI reply dated 17.07.2023 have stated in response to question No. 6 as follows:- 6. It is observed in some of the reports that 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 layers are absorbent or not. Response: (a) Not-reflective (b) Absorbent (UV) vii. When the test report pertains to the same goods imported from the same manufacturer, it is permissible to place reliance on the previous test report taken. viii. Though the advance rulings will apply only to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, we notice that in para F of the Grounds of Appeal (vide Annexure-B) filed along with the Appeal Application dated 04.01.2024, the appellant had stated in clear terms as follows :- The subject goods are not wired, not tinted and not green in colour . As the product Clear Float Glass , is not coloured, and not wired, the possibility of classifying the subject goods either under chapter sub-heading 7005 21 or under 7005 30, gets ruled out. Accordingly, the scope for classification of the subject goods gets restricted to either 7005 10, or 7005 29. 6.7 As far as the chapter sub-heading 7005 10 is concerned, the description reads as : - - Non-wired glass, having an absorbent, reflecting or non-reflecting layer , and the classification at the eight digit level goes as follows 7005 10 10 --- Tinted 7005 10 90 --- Other As against this, the product description under chapter sub-heading 7005 29 reads as - Other , and the classification at the eight digit level goes as follows :- 700529 10 --- Tinted 7005 29 90 --- Other Under chapter sub-heading 7005 29, the term -- Other refers to Other non-wired glass which are not Coloured throughout the mass (body tinted), opacified, flashed or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans 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. It becomes clear from the above that a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) is required to be carried out during the manufacturing process of float glass, in order to serve as an absorbent, reflecting or non-reflecting layer. As an alternative, the float glass may be coated with an absorbent, reflecting or non-reflecting layer, post manufacture. The other noticeable point that could be seen from the explanatory notes to chapter heading 70.05, (which details the process of manufacture of float glass) is that when the molten glass leaves the furnace, it is fed on to a float bath of molten metal. We notice that Tin is the commonly used metal for such purposes. 6.11 It is learnt that the float process of manufacturing glass was invented by Sir Alastair Pilkington in 1952 under which clear, tinted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lat surface of the float glass. This fact is further supported by the Manufacturing process of Float Glass furnished by the appellant themselves, at the time of filing the original application before the AAR. The said write-up also mentions that Tin is suitable for the float glass process because it has a high specific gravity, is cohesive, is immiscible with molten glass, and that while flowing into the tin surface, the glass attains smooth surfaces on both sides and of even thickness. The write-up under UQG Optics referred above also point to the fact that in order to meet specific optical requirements, the float glass can be processed further by way of laminating, tempering, coating, etc., but in such cases, the glass will be as treated as worked , as such laminating/coating process will be regarded as a secondary process , after the completion of manufacturing process. As an alternative, the writeup under FOSG suggests adding colour to the glass during the manufacturing process to achieve tint and solar radiation absorption properties, but in such cases, the output will be referred to as a Tinted Float Glass , and not as Clear Float Glass . 6.12 As admitted by the appellant the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscusses the same issue in a detailed manner, in respect of some of the imports made during 2022. We find that some of the points discussed in the said Order merit consideration, viz.,- That the appellant had stated in support of their stand that when the identical goods were imported vide bill of entry No. 8520077 dated 19.10.2018, the same were provisionally assessed and the samples were sent for testing at CSIR-CGCRI, Kolkata . Subsequently, based on the test report dated 04.02.2019, the bill of entry was assessed classifying the goods under CTH 7 005 1090; That the appellant have been regularly importing the said goods from Malaysia and were classifying the goods under CTH 70051090, and that the Ministry of International Trade and Industries (MITT), Malaysia were also mentioning the goods under CTH 7005 1090 ; That it is reported by the appellant that, of late, the MITT, Malaysia is mentioning CTH 7005 2990 in the Country of Origin Certificate, for the very same goods; That the Assessing Officer, Customs did not permit the appellant to file the bill of entry under CTH 70051090, as the Country of Origin certificate contained a different CTH. Therefore, left with no other option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the member countries of WCO, and it is seen that apart from India, the United States, Malaysia, etc., are also members of WCO. 6.16 It would not be out of place to discuss an identical case that was deliberated upon as early as 1992, involving the HSN as well as the float glass , in the United States, the excerpts of which is reproduced below :- HQ 951136 June 2, 1992 --------------- ----------------- This is in response to your letter of February 14, 1992, requesting the tariff classification, of float glass under the Harmonized Tariff Schedule of the United States (HTSUS). --------------- --------------- Heading 7005, HTSUS, provides for float glass and surface ground or polished glass, in sheets, whether or not having an absorbent or reflecting layer, but not. otherwise worked. The applicable sub-heading depends on whether the float glass has an absorbent or reflecting layer. According to Legal Note 2(c) to Chapter 70, absorbent or 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of origin of goods, was with an intended purpose to convey to the countries importing float glass from them, that such goods do not have an absorbent layer. 6.18 hr general, we observe that the basic manufacturing process of float glass involves floating molten glass on the mirror-like surface of tin, starting at 1,100 degree Celsius leaving the float bath as a solid ribbon at 600 degree Celsius on a bed to molten tin which inevitably introduces tin by thermal diffusion into one side of the glass. The glass so manufactured is clear float glass, one side of which is known as the tin side and the other side as the air side. All glass manufactured under float process, (clear, coated or tinted) invariably would contain a layer of tin on one side, which does not mean that all float glass is to be classified under 70051090 . The above manufacturing process is well known. As the glass ribbon is floated on a bath of molten tin, a layer of tin is always seen in any float glass. Under UV light it is illuminated and that side is identified as tin side. Absorbent layer in float glass is in addition to the tin layer. Chapter Note 2(c) to chapter 70, has explained the absorbent layer as below th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther notice that while the determination of correct classification of Clear Float Glass only was sought by the appellant in their original application filed before the AAR, the ruling by the AAR has considered the case of Clear Float Glass , if tinted, as meriting classification under CTH 7005 2910, which is superfluous and not required to be discussed in the instant case. Therefore, the ruling of the AAR is liable to be modified to that extent. 6.22 We now move on to discuss the other points raised by the appellant, in support of their stand, viz.,- Regarding the appellant s reliance on the case law involving M/s. Bagrecha Enterprises Ltd., passed by the Hon ble CESTAT Kolkata in its Final Order No. 77460-77462/2023 dated 03.11.2023 , we notice that an appeal is being preferred against the said Order by revenue. The appellant s reliance on the RTI reply dated 17.07.2023 given by the Central Glass and Ceramic Research Institute, Kolkata is of no avail to them, as it is seen that the original test report dated 04.02.2019 which is specific to the appellant, pertains to a BGE No. 8520077 dated 10.10.2018, which cannot be applied in general as it is not contemporaneous in nature. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of following a different CTH for trading purposes, for the same goods imported and assessed, does not arise. We are in agreement with the findings of AAR in this regard, and as discussed in para 6.20 above, classification under GST and Customs are no different from each other. The appellant has claimed that the Advance Ruling issued by the Customs Authority for Advance Ruling in the case of M/s.Suraj Constructions and M/s. Chandrakala Associates has been brushed aside by the AAR by stating that they are applicable only on the respective applicants, without citing any reasons. While appreciating the fact that such rulings do have a persuasive value, we are also bound to make it clear that such rulings are binding only on the applicant, the concerned officer or the jurisdictional officer in respect of the applicant. This aspect is in-built in the statute, i.e., under Section 103(1) of the CGST Act, 2017. Further, as against the Advance Rulings projected by the appellants in favour of their stand, we find that in an identical case involving M/s. Neha Traders, the Customs Authority for Advance Ruling, Mumbai vide Ruling No.CAAR/Mum/ARC/66/2023 dated 03.10.2023 , had ruled th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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