Custom, Excise & Service Tax Tribunal
Cce, Chennai Iv vs M/S. Larsen & Toubro Ltd on 10 December, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/182 to 184/2003 and E/CO/208 to 210/2003
E/511 to 513/2003 and E/CO/8/2004
(Arising out of Order-in-Appeal Nos. 203, 204 & 205/2002 (M-II) dated 26.12.2002 and Nos. 89, 90 & 91/2003 (P) dated 24.4.2003 and passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Ms. Jyoti Balasundaram, Vice President
Honble Dr. Chittaranjan Satapathy, Technical Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Chennai IV
CCE, Pondicherry Appellants
Vs.
M/s. Larsen & Toubro Ltd. Respondents
Appearance Shri V. V. Hariharan, Jt. CDR For the Appellants Shri Arvind P. Datar, Senior Advocate Shri R. Raghavan, Advocate Shri M. Kannan, Advocate For the Respondents CORAM Honble Ms. Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of Hearing: 10.12.2009 Date of Decision: 10.12.2009 Final Order Nos. ____________ Per Dr. Chittaranjan Satapathy These six appeals filed by the Department are taken up together for hearing and disposal as the issue is the same in all these appeals.
2. Heard both sides. Shri V.V. Hariharan the learned Jt. CDR appearing for the Department states that the respondents are manufacturing H-beams. The Department is seeking classification under Heading 4405.90 whereas the respondents are claiming classification of the same under Heading 4410.90. He explains the reasons for which the original authorities have classified the impugned goods as wood, whether or not planed, sanded or finger-jointed. He also states that one of the adjudicating authorities had also visited the factory and seen the manufacture of the impugned goods. He states that Heading 44.10 of the Central Excise Tariff corresponds to Heading 44.18 to the Customs Tariff and that the adjudicating officers have held that the impugned goods cannot be classified under the Heading 44.10 as articles of wood not elsewhere specified.
3. Heard Shri Arvind P. Datar, learned senior counsel appearing for the respondents. He states that the issue of classification of the impugned goods was earlier settled and the same has been reopened by the departmental authorities without there being any fresh material or fresh cause arising in the intervening period. Further, he explains the process of manufacture of the impugned goods which is made from wooden pieces, joined across by block wood which in turn is made by joining layers of plywood. He also states that the impugned goods are used for scaffolding material in the building industry. The following case laws are also cited on behalf of the respondents:-
(i) Larsen & Toubro Ltd. Vs. CCE, Chennai 2002 (144) ELT 104
(ii) CCE, Bangalore Vs. Deccan Structural Systems 1998 (102) ELT 511
(iii) CCE, Meerut Vs. Kitply Industries 2000 (118) ELT 501
4. After hearing both sides and perusal of the case records, we note that the two competing entries in the Tariff are as follows:-
44.05 Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, moulded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed 4405.10
- In or in relation to the manufacture of which no process is ordinarily carried on with the aid of power Nil 4405.20
- Used within the factory of production for the manufacture of goods falling under sub-heading No.4410.19 or 4410.90 Nil 4405.90
- Other 18% 44.10 Articles of wood not elsewhere specified
- Doors, of Wood:
4410.11
- Flush doors 18% 4410.19
- Other Nil 4410.90
- Other Nil From the above, we find that the Heading 44.05 covers wood continuously shaped along any of its edges or faces, whether or not planed, sanded or finger-jointed. Its equivalent entry in the Customs Tariff is 44.09. The Explanatory Notes to same clarify that this Heading covers timber particularly in the form of boards, planks etc., whether or not planed or sanded or end-joined (e.g.) finger-jointed. The impugned goods in this case are not end-jointed. On the other hand, two I shaped beams are joined together by a piece of block wood made from plywood. The block wood itself requires manufacturing from several layers of plywood. The final product emerges in the shape of H. In addition to taking note of the process of manufacturing of H-beams, the lower appellate authority has also taken note of the fact that H-beams made up of iron and steel are classifiable as products of iron and steel.
5. In view of the foregoing, we are inclined to hold that the arguments advanced on behalf of the respondents have force and that the impugned H-beams merit classification under heading 4410.90 as article of wood not otherwise specified rather than under Heading 4405.90 as wood. Accordingly, we hold that the impugned orders passed by the lower appellate authority do not require any interference and we dismiss all the six appeals filed by the Department.
(Operative portion of the order was pronounced
in open court on completion of the hearing)
(Dr. Chittaranjan Satapathy) (Jyoti Balasundaram)
Technical Member Vice President
Rex
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