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TMI Blog2025 (2) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... e First Schedule to the Customs Tariff Act, 1975 [the Tariff Act] claimed by Asahi India Glass and cancelled the provisional duty bonds and bank guarantee submitted by Asahi India Glass against the provisional assessment. Both the Assistant Commissioner and the Commissioner (Appeals) placed reliance upon an order dated 20.07.2022 passed by the Commissioner (Appeals) in the matter of Asahi India Glass itself, wherein Light Green Float Glass was classified under CTI 7005 10 10. 2. The issue involved in this appeal is whether Light Green Float Glass imported by Asahi India Glass through 220 Bills of Entry during the period from 08.01.2021 to 24.02.2023 would be classifiable under CTI 7005 10 10 as claimed by Asahi India Glass, or under CTI 7005 21 10 as claimed by the department. This would determine, whether Light Green Float Glass would be eligible for the benefit of exemption from payment of basic customs duty under the Exemption Notification dated 01.06.2011. 3. The Commissioner (Appeals), by the impugned order dated 14.12.2023, rejected the appeal filed by the department and upheld the order dated 14.03.2023 passed by the Assistant Commissioner. The relevant portion of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled position of law that burden of proof of classification is on the Department. The classification has been changed on the basis of Test Reports. I have carefully going through the copies of Test Reports from CGCRI, Kolkata. I find that said Test Reports are not conclusive enough to reject the declared classification by the Appellant. Rather, the said Reports do mention the presence of Layer. The exact findings of some of the Test Reports in this regard are as under..- "c) The Tin Side is detected under UV illumination using tin detector. i) An absorbent layer (Tin) is observed ion one side of the glass which is fluorescent under UV illumination. j) The glass is found to be coated with ZnSO4 film on opposite to tin side as protective layer." The Test Reports have clearly established that impugned goods were having absorbent layer (Tin) on one side. This fact is not disputed. Accordingly. I find absolutely no reason to exclude these goods from 700510 & classify them under 700521. Rather, the said goods viz. "Light Green Float Glass/ Coloured Float Glass" with absorbent Layer of Tin on one side would merit classification under Sub-heading 7005 and more precisely under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed under CTH 70051010 with application of S. no. 934 of Notification No. 46/2011-CUS dated 01.06.2011, as amended, along with consequential relief. 8.7.5 On 10.05.2022, the Customs Authority for Advance Ruling, Mumbai given its ruling in the case of M/s. Suraj Constructions dated 10.05.2022 holding that goods similar to the Assessee Respondent having an absorbent layer will be classifiable under CTH 700510. 9. In view of the above discussion and findings, the appeal filed by the appellant i.e. by the Assistant Commissioner of Customs, ICD, Kathuwas, Alwar is hereby rejected and uphold the impugned OIO." (emphasis supplied) 4. Shri Sashi Kant Sharma, learned authorized representative appearing for the department made the following submissions: (i) Similar or identical goods imported by Asahi India Glass and other importers have been classified under CTI 7005 21 10, rather than CTI 7005 10 10, but the adjudicating authority did not consider this prevailing classification leading to inconsistency in applying tariff headings; (ii) The difference between Customs Tariff Sub-Heading [CTSH] 7005 10 and CTSH 7005 21 under the Customs Tariff is significant in the context of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing statute, one which favours the assessee should be adopted; (v) Reliance placed by the department on import data of Light Green Float Glass under CTI 7005 21 10 by Asahi India Glass from other ports is incorrect and untenable; and (vi) The department has not discharged its onus to prove the re-classification claimed by them. 6. The submissions advanced by the learned authorized representative appearing for the department and the learned counsel for Asahi India Glass have been considered. 7. It would be appropriate to refer to the relevant tariff entries and the same are reproduced below: Chapter 70 Glass and glassware Tariff Item Description of goods Unit Rate of duty Standard Preferential Areas (1) (2) (3) (4) (5) 7005 Float glass and surface ground or polished glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked 7005 10 - Non-wired glass, having an absorbent, refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inalization of the provisionally assessed Bills of Entry under CTI 7005 10 10 with benefit of exemption under the Exemption Notification. 11. The Assistant Commissioner, by order dated 14.03.2023, accepted the classification of Light Green Float Glass under CTSH 7005 10 and accordingly, finalized the 220 Bills of Entry for the period from 08.01.2021 to 24.02.2023 under CTI 7005 10 10 with consequential benefit of the Exemption Notification. The order also directed for cancellation of provisional duty bond and bank guarantee submitted by Asahi India Glass against provisional assessment of the Bills of Entry. 12. The order dated 14.03.2023 was passed by the Assistant Commissioner for the following reasons: (i) The order dated 20.07.2022 passed by the Commissioner (Appeals) in favour of Asahi India Glass was accepted by the Committee of Commissioners; (ii) The Commissioner (Appeals) found that the test reports clearly established that Light Green Float Glass imported by Asahi India Ltd. had an absorbent layer (tin) on one side. Hence, there was no reason to exclude these goods from CTSH 7005 10 and classify them under CTSH 7005 21. 13. It is against the order dated 14.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.06.2011. The relevant observations are: "5.4.3 A Plain reading of CTH 7005 would reveal that 700510 covers non-wired glass having absorbent, reflecting or non-reflecting layer. A clear conclusion is that single clash entry after 70051090 i.e. "- other non-wired glass" would cover non-wired glasses without absorbent, reflecting or non - reflecting layer. 5.4.4 The Adjudicating Authority has held that CTH 700521 covers glass which may or may not have absorbent or reflecting or non-reflecting layer. The Adjudicating Authority has contended that the impugned goods are coloured through out body (i.e. body tinted) and thus covered by CTH 700521 and articles of CTH 700521 may or may not have absorbent/reflecting layers. This interpretation itself is erroneous in light of scheme of CTH under 7005 and explanation given in 5.4.3 above. 5.4.5. It is settled position of law that burden of proof of classification is on the Department. The classification has been changed on the basis of Test Reports. I have carefully going through the copies of Test Reports from CGCRI, Kolkata. I find that said Test Reports are not conclusive enough to reject the declared classification by the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the classification of Light Green Float Glass claimed by Asahi India Glass, but the appeal filed before the Commissioner (Appeals) was allowed by order dated 29.12.2022 and Light Green Float Glass was classified under CTI 7005 10 10. Reasons given by the Commissioner (Appeals) in the said order are identical to the reasons contained in the aforesaid order dated 20.07.2022. Learned counsel for the appellant also pointed out that the department has not filed any appeal against the order dated 29.12.2022 and learned authorized representative appearing for the department has not disputed this fact. 18. The order dated 14.12.2023 passed by the Commissioner (Appeals) that has been impugned in this appeal takes cognizance of the earlier order dated 20.07.2022 passed by the Commissioner (Appeals) in favour of Asahi India Glass and also notes that the said order was accepted by the department. Once the order passed by the Commissioner (Appeals) classifying Light Green Float Glass under CTI 7005 10 10 has been accepted by the department, it is not permissible for the department to contend in this appeal that Light Green Float Glass should be classified under CTI 7005 21 10. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Circular dated 14.11.2024 is reproduced below: "Circular No. 23/2024-Customs F.No. 521/01/2023-STO(TU) Government of India Ministry of Finance, Department of Revenue Central Board of Indirect Taxes & Customs (Tariff Unit) North Block, New Delhi. Dated: 14.11.2024 ***** The Board is in receipt of several reference regarding the classification of the goods referred as Clear Float Glass having a tin layer on one side. 2. The issue raised was whether the presence of a tin layer on one side of the float glass be treated as the absorbent, reflective layer. The objection stated that the Float Glass having just a tin layer on one side can't be treated as a float glass having any absorbent layer and therefore is classifiable under CTH 70052990 instead of CTH 70051090 because the tin layer is existent by default on all glass manufactured through float glass process. 3. For the ease of reference, following from the First Schedule to Customs Tariff Act, 1975 is reproduced below: a. Heading 7005 of First Schedule to the Customs Tariff Act, 1975 covers 'Float glass and surface ground or polished glass, in sheets, whether or not having an absorbent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. 22. In this connection reliance can be placed on the judgment of the Supreme Court in Commissioner of C. Ex., Bolpur vs. Ratan Melting & Wire Industries [2008 (12) S.T.R. 416 (S.C.)]. The Supreme Court held: "6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." (emphasis supplied) 23. In Commissioner of Central Excise, Bhopal vs. Minwool Rock Fibres Ltd. [2012 (278) E.L.T. 581 (S.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayer' means a microscopically thin coating of metal or of a chemical compound (for e.g. metal oxide)". It was, therefore, clarified that clear float glass, which is not wired, not coloured, not reflective, not tinted and only has a tin layer on one side with no other metal oxide layer on it, will be said to be having no absorbent layer and consequently classifiable under CTI 7005 2990. 27. This Circular fails to appreciate the correct understanding of Note 2(c) of Chapter 70. Note 2(c) does not envisage any specific mode or method of "coating", while defining the expression "absorbent, reflecting or nonreflecting layer". On the contrary, it indicates that a layer formed by whichever means would qualify as a "coating". Therefore, the layer of tin coated on the disputed goods as a result of manufacturing process will qualify as an absorbent and reflective in nature, based on the technical evidence provided by Asahi India Glass. Consequently, the goods would be correctly classified under CTI 7005 10 10. 28. The test reports issued by CSIR Kolkata, also relied upon by the Commissioner of Customs (Appeals) in the impugned order, record that "the tin side is detected under UV illumin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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