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TMI Blog2024 (9) TMI 1554X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of the note. The terms used by Panchnama of goods being were not found to be squared logs, but were found to be of standard cut lengths with extremely accurate dimensions are as per H.S.N. Panchnama also indicates that 10% logs showed presence of bark traces. It was indicated that dimensions were not extremely accurate. Further the photos on records, as under also do not reveal extremely accurate dimensions. Further, logs with traces of bark, in any case cannot be considered as having extremely accurate dimensions. Department has also not shown that process of chipping was used to obtain better surface than sawing. Benefit of conflicting and in complete statements of panchas, C.H.A and A.R of the appellants in the absence of any expert opinion by the department as chipping having been involved also has to be construed in favour of the appellant, as burden of proof in classification matters is on the department. There are merit in the submissions made that the impugned goods deserve classification under 44.03 and not under T.H. 4407. Reliance in this regard also is placed on the decision of Hon ble Tribunal in the case BHAIRAMAL GOPIRAM VERSUS COMMISSIONER OF CUSTOMS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party to the lower authorities that while classifying the goods under CTH 4407 they have ignored the criteria laid down in HSN explanatory notes of CTH 4407. According to this, goods must be chipped to extremely accurate dimensions; a process which results in a surface between than that obtained by sawing and which thereby renders subsequent planning unnecessary. The photographs scanned and reproduced in the adjudication order show that goods are not having extremely accurate dimensions. 5. Reliance was placed placed on the decision of the Tribunal in the case of Atul Timber Ltd. v/s Commissioner of Customs, Nagpur, 2005 (188) ELT 116 (Tri.-Del.) In that case, the Dy. Conservator of Forests found that although the pieces were cut from all the four sides, he did not opine that the goods could be used as such without further machining or planning. On this basis, Hon ble Tribunal set aside the classification ordered by department under 4407. The appeal filed by Department was dismissed by Hon ble Supreme Court as reported at 2015 (322) ELT 793 (S.C.). 5.1 In this case, even the lower authorities have not found that goods could be used as such without further machining or planing. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cutting is not proper; logs are roughly squared; it needed further sawing to get accurate dimension. ii) Logs were cut for ease of transportation; dimension is uneven and not standard; iii) The end use is construction as shuttering, RCC roofing, packing material; iv) It will be first planked and then used as per requirement. v) As per photographs, only one side was cut; other three sides were showing the sap wood and natural rounding; vi) The goods cannot be considered as sawn wood because the same were roughly squared and maximum lot had sapwood portion and were unedged and required further sawing. 8.3 We find that on record there is no expert opinion obtained by the department about accuracy of dimensions or about the process involved in making the logs obtain the shape of cuboids. 10% logs were apparently having the bark and statement of A.R of the appellant recorded by the department denies cutting to be proper or accurate. Further, the decisions relied upon by A.R. of the department, on Central Excise side are in a different context and do not advance their case. 9. The department has ordered classification of goods under CTH 44.07 on the basis of following allegation containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wood and timber includes town beams, planks, flitches, boards, laths, etc. and products regarding 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 thereby renders subsequent planing unnecessary... 10.2 . From a bare reading of the panchnama, it is clear that the following requirements are not satisfied for classification under CTH 44.07: i) There is no record that the goods have been sawn or chipped along with the general direction of the grain or cut by slicing or peeling. ii) In the photographs reproduced in the order-in-original (page 25 to 27), goods appear to be somewhat of accurate dimensions but not extremely accurate dimensions. The word extremely employed in HSN cannot be rendered otiose or redundant. iii) The expression extremely accurate dimensions for classification under CTH 44.07 is also defined in the HSN. According to this, chipping machines must have been used and the process of chipping must have resulted in a surface better than that obtained by sawing so as to render subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usive has been changed by him on crossexamination. As such the Commissioner after observing that the two opinions of the Range Officer were self-contradictory has held the same to be unreliable. If the said opinion of the Range Officer is excluded from consideration, there is no other evidence on record to support the Revenue s contention that the timber in question has been sawn to such an extent so as to get it covered by heading 44.07. There is nothing on record to show that the timber in question has been further manufactured apart from sawing and such further sawing is to such an extent so as to not require any further planning. The appellants contention is that the wood in question was coarse sawn for the purposes of smooth transportation and merited classification under heading 44.03. The Revenue has not placed any evidence on record to the contrary. It is well settled that the burden in such cases is upon the Revenue to show that the goods fell under 4407. We also take note of another Tribunal s decision in the case of A.G. Daftry v. CC, Bombay - 1997 (92) E.L.T. 584 (Tribunal) where wood logs sawn on two sides were held to be classifiable as wood roughly squared and half s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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