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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 ..... ss would merit classification under CTI 7005 10 10 and consequently would be entitled to claim exemption under the Notification dated 01.06.2011. 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. The Circular dated 14.11.2024 deals with the question whether the presence of a tin layer (which is present by default in all float glass) on one side can be treated as the absorbent, reflective layer. The Board clarified that issue was examined in consultation with CSIR-Central Glass & Ceramic Research Institute, Kolkata. On examination, the Board found that "Getting 'tin layer' on the one side of the glass by default does not mean that it satisfies the condition unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (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 order passed by the Commissioner (Appeals) is reproduced below: "8.1 I find that identical issue of the respondent (M/s Asahi India Glass Ltd) on the same issue has already attain finality, which are discussed as under- a. I find that in the similar matter in their ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CTH 7001010." d. I find that the said Order-in-Appeal No.CC(A)CUS/D-II/CD/PPG/861-863/2022-23 dated 20/07/2022 was accepted by the competent Authority i.e. Committee of Commissioners of Customs as conveyed vide letter dated 13/01/2023. ***** 8.4 A Plain reading of CT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 classification of glass products. CTSH 7005 10 focuses on glass that achieves tinting or reflection through added layers or coatings. CTSH 7005 21 focuses on glass that is inherently colored throughout its mass during production. The goods under review fit the description of body- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, reflecting or non-reflecting layer: 7005 10 10 --- Tinted m2 10% - 7005 10 90 --- Other m2 10% - - Other non-wired glass 7005 21 -- Coloured throughout the mass (body tinted) opacified, flashed or merely surface ground: 7005 21 10 --- Tinted m2 10% - 8. Asahi India Glass had filed 3 Bills of Entry in 2021 for clearance of Light Green Float Glass at ICD, Alwar. During the course of assessment, a query was raised by Port Assessment Group [PAG] seeking explanation from Asahi Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 14.03.2023 that the department filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) upheld the order dated 14.03.2023 passed by the Assistant Commissioner and rejected the appeal filed by the department for the following reasons: (i) The issue under consideration had attained finality as in a similar matter, the Commissioner (Appeals) held by order dated 20.07.2022 that the goods were classifiable under CTI 7005 10 10, which order had been accepted by the department; (ii) The case of the department was that CTSH 7005 21 covers glass which may or may not have an absorbent re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appellant. Rather, the said Reports do mention the presence of 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 CTH 70051010. ***** 5.6 The classification issue in the favour of the appellant is further supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 this connection reliance can be placed on the decision of the Supreme Court in Jayaswals Neco Ltd. vs. Commissioner of Central Excise, Nagpur [2006 (195) E.L.T. 142 (S.C.)]. The relevant observations are: "6. This Court in Birla Corporation Ltd. v. Commissioner of Central Excise [2005 (186) E.L.T. 266 (S.C.)] relying upon an earlier decision of this Court, held that the department having accepted the principles laid down in the earlier case cannot be permitted to take a contra stand in the subsequent cases. In Paragraph 5 of the said judgment it was observed, thus: "In the instant case the same qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, reflecting or non-reflecting layer, but not otherwise worked' and has several entries, of which relevant ones are reproduced below: 7005 10 -non-wired glass, having an absorbent, reflecting or non-reflecting layer: 7005 10 10 ---Tinted 7005 10 90 ---Other -Other non-wired glass: 7005 21 --Coloured throughout the mass (body tinted), opacified, flashed or merely surface ground: .................................... 7005 29 --Other: 7005 29 10 ---Tinted 7005 29 90 ---Other 7005 30 -Wired glass: ............... (b) Further, as per Chapter Note 2.(c) to Chapter 70, For the purposes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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.)], the Supreme Court held: "14. The learned senior counsel Shri Bhatt invites our attention to the circular instructions issued by the Board. In our view, the departmental circulars are not binding on assesee or quasi-judicial authorities or courts and therefore, in that view of the matter, the circular/instructions issued by the Board, would not assist them" (emphasis supplied) 24. In Collector of Central Excise, Bombay vs. Kores (India) Limited [1997 (89) E.L.T. 441 (S.C.)], the Supreme Court held: "3. The learned Addl. Solicitor General, on behalf of the Revenue, has drawn our attention to the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 illumination using tin detector", and "an absorbent layer is observed on tin side of the glass which is fluorescent under UV illumination". The Circular cannot provide for a stand which is contrary to the settled position determined by the Tribunal. Once the disputed goods satisfy all the conditions of Note 2(c) of Chapter 70, they deserve to be classified under CTI 7005 10 10 of the Customs Tariff Act. 29. Thus, for all the reasons stated above, the order passed by the Commissioner (Appeals) does not require any interference. The appeal, therefore, deserves to be dismissed and is dismissed. (Order Pronounced on 10.02.2025)< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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