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TMI Blog2006 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... he order-in- original and held that Laboratory Glassware manufactured by the respondents is classifiable under Heading 7012.10 of the Central Excise Tariff Act, 1985 (for short 'the Tariff Act') and that the extended period of limitation was not available to the department as all facts had been disclosed by the respondents and were in the knowledge of the department. It was also held that there was no suppression of facts by the respondents. 2. As all these appeals were disposed of by the Tribunal by a common order, we also propose to dispose them of by passing a common order. For the sake of convenience, the facts are taken from Civil Appeal No. 2676 of 2001 (Super Scientific Glass Industries). 3. Respondent-assessee filed declarations in terms of Rule 174(2) and the notification issued thereunder, during the period April, 1991 to April, 1995 claiming exemption from licensing control on the ground that the product manufactured by them was exempted from payment of duty. The fact of filing of these declarations has been acknowledged by the Commissioner in its order. In each declaration the products manufactured by the respondent were described as 'Laboratory Glassware' classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Round Bottom, Flat Bottom, conical 2/3/4/5 Multinecks, with/without bottom outlet, Distillation, Reaction Vessels, Spherical Cylindrical etc. of various sizes/capacity upto 300 Ltr. 5. Condensers Leibig, Multicoil, Coil, Double, Surface, Jacketted Bulb Type, Friedrich, flanged etc. of various shapes/sizes/types/lengths. 6. Funnels Conical, Cylindrical, Globular, Pear Shape, Sepa- rating etc. of various sizes/capacity and shapes 7. Tubes Inlet, Outlet, Vent, Addition, Plain, Thermometer Pocket, Thermowell, of various sizes and shapes 8. Stirrers Anchor, Bladed, Vortex, Centrifugal, mercury Seal Chuck Seal Type, Link Type, Plain etc. of various types/shapes/sizes/lengths and dia 9. Columns Plain, Vigreux, Packed, Silvered, Fractionation, Jacketted Heated, Bubble Cap with Joints Flange ends etc. of different dia/shapes length Upto 18" dia. 10. Extractor Soxhlet, Liquid/Liquid, Liquid/Solid, Upward, Downward of various types, shapes and capacities. 11. Misc. Fittings Tees, Bends, Reducers, Adaptors, 'Y' types, Hose Connectors, Multineck Fittings, Evapora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filter, gas burettes, test-tubes, etc.), stirrers. Distilling flasks, graduated jars, culture flasks (Kolle, Roux, etc.), burettes of all kinds, evaporating dishes, volumetric flasks, special bell-jars and receivers (vacuum, necked, etc.), special dropping bottles (calibrated, etc.), retorts, crystallising dishes, drying cylinders, filter plates and discs, spoons, desiccators, dialysers, adapters, condensers, receivers for distillation Apparatus, special funnels (with stop-cock, bulb-shaped funnels, etc.), cylinders, crucibles, filter crucibles, special flasks (conical, multi-necked, etc.), special spirit burners, mortars, weighing boats, pipettes, vacuum vessels of various specialized types (not falling in Heading 96.17), wash-bottles, stop-cocks, spatulas, jars (filtering, precipitating, multinecked, etc.) muffles, crucible support plates, microscope slides and cover glasses, etc. xx xx xx The heading excludes : (a) Containers for the conveyance or packing of goods (Heading 70.10); ordinary curved watch glasses sometimes used in the laboratory (Heading 70.15, see the Explanatory Note to that heading); chemists' special display bottles and glassware of a kind used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments, appliances and other articles of Chapter 90. (d) Articles of Chapter 91 (e.g., glass clock cases, other then merely protective covers). (e) Musical instruments, and parts and accessories therefor, of Chapter 92 (e.g. tuning forks of fused silica). (f) Glass furniture, and parts thereof clearly recognisable as such (Chapter 94). (g) Toys, games, Christmas tree decorations, fishing or hunting requisites and other glass articles of Chapter 95. (h) Glass articles of Chapter 96 (e.g., buttons; pen-holders; pencil-holders; pen nibs; lighters; scent sprays; vacuum flasks and other vacuum vessels, complete with cases). (i) Antiques, being articles of an age exceeding 100 years (Heading 97.06)." 12. From the reading of the Explanatory Note 70.17 of the HSN it is apparent that it covers glass articles of a kind in general use in the laboratories including the ones enumerated there and excludes the containers for the conveyance or packing of goods; ordinary curved watch glasses sometimes used in the laboratory and special display bottles and glassware of a kind used for industrial purposes. It also excludes glass instruments and appliances of Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared "units". This description covered fully functional pieces of machinery used for distillation, fractionation etc. The Commissioner held against the respondents in the belief that a complete unit capable of manufacturing products would cease to be Laboratory Glassware falling under 70.12 and, therefore, must necessarily fall under 70.15. Tribunal is right in observing that the individual pieces or parts which could together form a complete unit are specifically listed as being included in the HSN Heading 70.17. The products excluded are "glassware of a kind used for industrial purposes (Heading 70.20)". The finding recorded by the Commissioner that wherever any glassware is used for industrial use would cease to classify as Laboratory Glassware cannot be accepted. Tariff entry 70.15 is a residuary heading and cannot be resorted to unless a product is incapable of falling under any of the predecessor headings. What is included in this residuary entry is specified in the sub-notes. The specific products includable in the residuary category would not cover Laboratory Glassware falling under Heading 70.12. Heading 70.17 in the HSN does not keep out Laboratory Glassware merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." 16. In order to make the payment for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise was not levied or paid or short-levied or short-paid or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules made thereunder, with the intent to evade payment of duty. The act of withholding by the assessee has to be positive and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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