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TMI Blog2025 (1) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... t is used to shape columns, slabs, where it is used to create flat surface such as floors, roofs and bridge decks - The reliance placed by the Adjudicating Authority that it is customized and cannot be used or moved to other location is also misplaced. It is nobody s case that these formworks remain even after concretes were set in and that they were not removed and kept elsewhere for a similar use at a later date, if required. CTH 7610 covers, inter alia, aluminium structures and by way of example, it includes, inter alia, roofing frameworks. The roofing framework is therefore covered within CTH 7610 and therefore, it is necessary to understand what roofing framework is and how it is different from formwork. Roofing framework refers to structural element that supports a roof and, inter alia, provides structural support and also serves as a base for roofing material. In other words, it would be permanent structure as distinct from aluminium formwork - A complete immovable building structure cannot be called a blank or an article. The illustration also made it clear that mould would create blanks, articles, etc., including cement slabs but not the entire building or structure. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enial is also not tenable. Conclusion - The product AFM imported by the appellant is rightly classifiable under CTH 76109090 and not under CTH 84806000, as confirmed by the Adjudicating Authority. Moreover, since there is no dispute as regards origin of the goods, therefore, once the goods are falling under CTH 7610, the same would be entitled for exemption notification 152/2009 dt. 31.12.2009 at S.No.610. Appeal allowed. - MR. A.K. JYOTISHI, MEMBER (TECHNICAL) AND MR. ANGAD PRASAD, MEMBER (JUDICIAL) Shri M. Srinivasa Rao, CMO for the Appellant. Shri M. Anukathir Surya, AR for the Respondent. ORDER M/s Vijay Nirman Company Pvt Ltd (hereinafter referred to as the Appellant) are in appeal against the OIO dt.22.12.2020 (impugned order) passed by the Principal Commissioner of Customs, Visakhapatnam. Vide the impugned order, the Adjudicating Authority has, inter alia, reclassified the imported product Aluminium Formwork Materials (AFM) under CTH 84806000 from the claimed classification under CTH 76109090. As a consequence, he has also denied the benefit of notification claimed by the appellant under S.No.610 of Notification No. 152/2009-CUS dt. 31.12.2009. 2. The brief facts of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having the character of moulds. c) That goods are made of aluminium having essential character of mould and hence the function of mould is to retain the material in predetermined shape until it sets into intended shape and also it never forms part of constructed structure but are removed after setting of concrete and reusable for some purpose. d) As per Design Building Wiki, an open source website, Formwork is a term used for the process of creating a temporary mould into which concrete is poured and formed. In civil engineering terminology, a Formwork is a die or a mould including all supporting structures, used to shape and support the concrete until it attains sufficient strength to carry its own weight. e) The importers themselves has agreed that goods are predesigned and custom made shuttering material exclusively to fit into the design for the contract for construction of dwelling units under APTIDCO and it cannot be used for any other purpose. f) HSN Explanatory Note to CTH 8480 covers, inter alia, moulds for mineral materials, including moulds for moulding concrete, cement or asbestos-cement goods, etc. g) Since they had already made part payment and they were in agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to why and which conditions of the notification were not fulfilled by the appellant, therefore, they were not in a position to rebut the same. 6. Learned Advocate relies on the explanatory note to HSN and submits that under the heading 7308.40, equipment for scaffolding, shuttering, propping or pit-propping is given under Chapter 73, pertaining to structures of iron or steel and that the same explanatory note would also be applicable, mutatis mutandis, to the heading under 7610. Therefore, Aluminium structures in this case, are similar to equipment for scaffolding, shuttering, propping or pit-propping. Apart from merit, he has also relied on various case laws in support that, in the facts of the case, there is no suppression and there is no ground for invoking extended period as also for imposition of penalty. 7. On the other hand, learned AR has reiterated the observations made by the Adjudicating Authority for reclassification and confirmation of demand as well as for imposition of penalty, etc. They have also relied on the judgment of Hon ble Supreme Court in the case of CC (Import), Mumbai Vs Dilip Kumar and Co. Ors [2018 (7) TMI 1826 (SC)]. Learned AR has also explained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble as parts of articles of Chapter 84 to 88. Explanatory note to heading 7308, inter alia, covers complete or incomplete metal structures, as well as parts of structures and for the purpose of the said heading, these structures are characterized by the fact that once they are put in position, they generally remain in that position but this heading does not cover coffering panels intended for pouring concrete, having the character of moulds. On the other hand, Chapter heading 8480.60, inter alia, includes moulds for mineral materials and the explanatory note to this heading covers the moulding boxes used in metal foundry, mould bases and moulding patterns, with certain exceptions. It also covers all moulds (whether or not hinged and whether used by hand or in presses or moulding machines) which are of a kind used for moulding the following materials into blanks or finished articles: i) Metals and metal carbides ii) Glass (including fused quartz or other fused silica) or mineral materials such as ceramic pastes, cement, plaster or concrete. iii) Rubber or plastics. In general, the essential function of a mould is to retain the material in a predetermined shape while it sets; some mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is temporary structure used to shape and support freshly poured concrete until it hardens and gains sufficient strength to support itself and the formwork can be used in different areas, including building foundations, where it is used to create the shape of foundation walls, footings and piers, walls and partitions, beams and columns, where it is used to shape columns, slabs, where it is used to create flat surface such as floors, roofs and bridge decks. Even though this term formwork and mould are often used interchangeably in construction activity, they have different meanings. While formwork is a temporary structure used to shape and hold concrete until it sets in and it basically provides support and maintains the structure during the construction process and are typically removed after concrete sets in, leaving behind the desired structure. Whereas, in case of mould, they are reusable pattern or cavity used to shape material and can make multiple copies and can be permanent also depending on the application. Therefore, while formwork is primarily used in construction to shape and support structures temporarily, the moulds are used in creating multiple copies of desire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in, the entire panel can be dismantled by removing one by one and the structure will stand on its own. Merely because of this process of casting, it cannot become a mould for either making a slab or a mould for making a full structure itself. There has to be a definite item or product which can be made repeatedly by using such moulds which is not the case here. In fact HSN clearly points out that a mould is used for moulding certain materials into blanks or finished articles. Nowhere the department has pointed out any blank or article has emerged out these aluminium formworks. A complete immovable building structure cannot be called a blank or an article. The illustration also made it clear that mould would create blanks, articles, etc., including cement slabs but not the entire building or structure. 16. We also observe that the case has been made out on the basis of information and statement given by the appellant, wherein, they had, inter alia, also stated that they had paid up the differential duty in respect of 15 Bills of Entry to avoid interest burden, etc. However, in respect of remaining 5 Bills of Entry, which is the subject matter of this appeal, they are contesting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat kind of mould, which will mould concrete, etc., into various items like tubes, vats, paving stones, flags, etc. It will also include the mould walls, floor or roof slabs. Here it is important to note that the expression used, wall, floor or roof slabs, etc. , means that slabs which are meant for use in walls, floors or roofs are also made by using moulds. Essentially, in the case of mould, the articles which are made by way of moulding concrete, etc., are the articles which are end products of the moulding product and the same is thereafter used for certain other purposes including construction purposes. Whereas, in the case of impugned goods, they are acting as a support for setting of the concrete and the structure once set in stays where it is and only the plates are removed. Therefore, there is stark difference between this product and the mould and therefore, AFM cannot be treated as if it is a mould for moulding in building or a house. It is nobody s case that these were used for making parts which were later assembled for construction of house rather from the facts, it is apparent that these were used as shutters and support, in situ, where the concrete gets set and immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict compliance before a State demands and extracts money from its citizens towards various taxes. Any ambiguity in a taxation provision, therefore, is interpreted in favour of the subject/assessee. The statement of law that ambiguity in a taxation statute should be interpreted strictly and in the event of ambiguity the benefit should go to the subject/assessee may warrant visualizing different situations. For instance, if there is ambiguity in the subject of tax, that is to say, who are the persons or things liable to pay tax, and whether the revenue has established conditions before raising and justifying a demand. Similar is the case in roping all persons within the tax net, in which event the State is to prove the liability of the persons, as may arise within the strict language of the law. There cannot be any implied concept either in identifying the subject of the tax or person liable to pay tax. That is why it is often said that subject is not to be taxed, unless the words of the statute unambiguously impose a tax on him, that one has to look merely at the words clearly stated and that there is no room for any intendment nor presumption as to tax. It is only the letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner and contended that the expression, for use in structure , used in CTH 7610 does not necessarily imply that the goods should become part of the structure and temporary use is also covered within the expression, use in structure . Therefore, since the essential character is imparted to the panel by aluminium, the goods are rightly classifiable under CTH 7610. In the present appeal, the department is taking a different view on CTH 7610 that it needs to be a permanent structure and it should not be movable, which is tenable. 22. Another ground taken by the department is that they will get excluded because they are coffering panels and therefore, they would not be included in the purview of CTH 7610. We find that coffering panels are basically decorative ceiling treatment that is used for creating a grid like pattern on ceiling and by the very description, as discussed supra, Aluminium Formwork cannot be considered as coffering panels and therefore, it does not get excluded from CTH 7610. 23. We also find that the reliance has been placed by the learned Advocate on the recent judgment of the coordinate bench at Kolkata, where the similar item has been held to be class ..... 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