Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Central Excise vs Kitply Industries Ltd. on 23 September, 2002
Equivalent citations: 2002(84)ECC851, 2003(151)ELT560(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. The Commissioner, Central Excise has filed this appeal, being aggrieved by the order passed by the learned Commissioner of Central Excise, Meerut pursuant to the review order passed by the Central Board of Excise & Customs.
2. The facts of the case briefly stated are that the respondent herein are engaged in the manufacture of wood and wood products. They are manufacturing laminated panels and claimed classification thereof under chapter sub-heading 4406.10 and 4407.90. The department alleged that the product manufactured by the respondent herein was classifiable under chapter heading 44.08. For this purpose they relied on Note 5 of Chapter 44 of the Central Excise Tariff Act, 1985 which read as under :-
"For the purpose of heading No. 44.08 the expression "similar laminated wood" includes blockboard, laminboard and battenboard, in which the core is thick and compound of blocks, laths or battens of wood glued or otherwise joined together and surfaced with the other plies and also penals in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibreboard, wood waste glued or otherwise joined together, asbestos or cork."
The learned Commissioner after examining the contention of the appellant dropped the proceedings and hence the appeal before us.
3. Arguing the case for Revenue, Shri AtuI Dikshit. ld. SDR submits that Note 5 to Chapter 44 is very very clear in regard to similar laminated wood. He submits that the product in dispute was laminated and provided decoration and gloss. He submits that the process of manufacture of the goods clearly indicated that they were laminated penals impregnated with paper for providing it water and heat resistance and making it more compact and attractive. He submits that under Chapter 44.12 of HSN Explanatory Note on page 682 similar laminated has been further defined. He submits that Heading 44.12 is para-materia to Chapter 44.08 of the Central Excise Tariff Act, 1944. The learned SDR submits that the Apex Court in their judgement in the case of Collector of Central Excise, Shillong v. Wood Craft Products Ltd., reported in 1995 (77) E.L.T. 23 (S.C.) in Para 16 observed as under -
"16. The significant words are "plywood", "veneered panels" and "lami nated wood" with reference to the meaning of which, the ambit of Heading No. 44.08 has to be determined. In the Oxford Encyclopedic English Dictionary, the meanings given are :
"Plywood - a strong thin board consisting of two or more layers glued and pressed together with the direction of the grain alternating".
"Blockboard - a plywood board with a core of wooden strips".
"Lamination - the manufacture by placing layer on layer".
The New Encyclopaedia Britannica, Volume 19, Macropaedia, under the heading "Forestry and Wood Production", in the section "Wood Utilization" at pages 420-21 states -
"Veneer - Veneer is a thin layer, or sheet, of wood that is uniform in thickness ......
*** *** *** *** *** "Plywood and laminated constructions. Plywood and laminated constructions are glued - wood products. Although gluing is an old art, practiced since ancient times the modern development of various products was made possible by the improvement of glues - especially by the production of synthetic resin adhesives.
Plywood is a panel product manufactured by gluing together one or more veneers to both sides of a veneer solid wood, or reconstituted wood core (......). In the case of solid-wood-core plywood and reconstituted-wood-core plywood, an additional intermediate step is the production of cores, which are made by lateral gluing of blocks or strips of wood or by gluing oriented wood chips or flakes with resin adhesives".
*** *** *** *** *** "Another important glued product is laminated wood ....." "Lamination, in technology, the process of building up successive layers of a substance such as wood or textiles and bonding them with resin to form a finished product. Laminated board, for example, consists of thin layers of wood bonded together,...."
He submits that the observation of the Hon'ble Supreme Court helps us in holding that the product is classifiable under chapter heading 44.08.
4. Learned SDR submits that no doubt the Tribunal in the case of CCE, Indore v. Bombay Burmah Trading Corporation Ltd., reported in 2000 (126) E.L.T. 962 (T) = 2000 (39) RLT 184 (CEGAT) held in Para 6 as under :-
"6. As against the aforesaid submissions of the learned DR, learned Counsel for the respondent submits that the goods in question were being sold as Nova tack pre-laminated particle boards and all varieties of particle boards remain covered under sub-heading 4406. He also submits that this is clear from the fact that veneered particle board is specifically mentioned under subheading 4406.30. He also produced before us Order in appeal No. 130-CE/BPL/97 dated 9-10-97 passed by the Commissioner of Central Excise (Appeals), Bhopal in regard to the classification of veneered particle board manufactured by the respondent. The Commissioner had upheld the classification of veneered particle board under sub-heading 4406.30 and the Revenue had not filed any appeal against this classification. Learned Counsel submits that pre-laminated particle board is only another variety of particle board, not specifically mentioned in tariff sub-heading 4406. All the same it remains particle board and merits classification under 4406.90 as "other" i.e. other particle board. He also submitted that Indian Standard specifications are not in conflict with classification of pie-laminated particle board under sub-heading 4406. He referred us to the I.S.I. specification 12823:1990/12823 which relates to Pre-laminated Particle Boards. He drew our attention in particular to para 3.2 of the specification which reads as under :-
"3.2 Pre-laminated Particle Board.
A particle board laminated on both surfaces by synthetic resin impregnated base papers under the influence of heat and pressure or with finished foils under the influence of pressure or pressure and heat depending upon the type of binder used".
He submits that it is clear from the Indian Standard that Particle Boards laminated on both surfaces by synthetic resin, are also recognized as particle Boards by Indian Standard. He also submits that the products described in Note 5 of Chapter 44 are an entirely different group of products from particle boards. It referred to a product with outer plies and a core between the two plies. In certain cases, core may be block board and laminated board and cases. The core may be layer or layers of particle board, fibre board etc. He also submits that such products are separately made with outer plies on both sides of the core. In the present case, the Commissioner has specifically noted that there was no outer plies on the laminated, particle boards and, therefore the process of laminated particle board is not the manufacture of another product covered by Heading 44.08. Learned Counsel submits that the interpretation sought to be placed on Chapter Note 5 the Revenue is not correct at all".
5. He submits that the decision of the Apex Court was not considered by the Tribunal in the case of Bombay Burmah Trading Corporation and hence the present issue is squarely covered by the decision of the Apex Court in the case of Wood Craft Products Limited. Therefore, the decision in the case of Bombay Burmah Trading Corporation can be distinguished.
6. Referring to the judgment of this Tribunal in, the case of Western India Plywoods v. CCE, Cochin reported in 1998 (102) E.L.T 628 the learned SDR submits that this decision of the Tribunal was in regard to the product which is different from the present one and therefore can be distinguished.
7. Shri Praveen Sharma, ld. Advocate appearing for the respondent submits that the product was correctly classifiable under chapter heading 44.06 or 44.07 inasmuch as for purpose of being classified under chapter heading 48 the product should have different construction and not the construction as it is in the present product. The learned Counsel submits that in the case of Wood Craft Products Ltd. cited by the appellant the Apex Court had before it entirely a different product. Since the product in the instant case was different and therefore the judgment of the Apex Court is distinguishable.
8. Regarding the judgment of the Tribunal in the case of Bombay Burmah Trading Corpn. the learned Counsel submits that their case is squarely covered by the ratio of the decision of the Tribunal in this case.
9. The learned Counsel also referred to the judgment of this Tribunal in the case of Western India wherein the Tribunal has examined in detailed the rulings of the Apex Court in the case of Wood Craft Products. He submits that if this examination is studied in depth it will be clear that their product will be classifiable under chapter heading 44.06/44.07. Learned Counsel therefore submits that when there is already a decision of the Tribunal on the specific product in question there was no necessity of going into other judgments. The learned Counsel therefore prays that the impugned order may be upheld and the appeal filed by the Revenue may be rejected.
10. We have heard rival submissions. We note that the product is particle board, laminated and impregnated with paper. We note that the three entries of tariff are relevant to the decision. The three entries i.e. 44.06, 44.07 and 44.08 are reproduced as under :-
"44.06 Particle board and similar board of wood or other ligneous materials, whether or not agglomerated with resins or other organic binding substances.
44.07 Fibreboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances.
44.08 Plywood, veneered panels and similar laminated wood."
11. We have also examined Note 5 to Chapter 44. According to this chapter note we note that for purpose of classification under Chapter Heading 44.08, the expressions are similar laminated wood includes blockboard, laminboard and battenboard in which the core is thick and glued of blocks laths or batten wood glued or otherwise joined together or surfaced with outer ply and also panels in which the wooden core is replaced by other materials such as layer or layers of particle board, fibre board, wood waste glued or otherwise joined together or asbestos or cork. Thus, we find that, for coming under this definition of similar laminated woods the outer ply should be there. In the instant case we don't find any outer ply/plies in the product. Further that core is not thick and compound of block, laths, battens of wood fixed together.
12. We have also gone through chapter heading 44.12 of the HSN explanatory notes which is parai materia to chapter heading 44.08 of the schedule of the Central Excise Tariff Act, 1985. We find that note 5 of chapter 44 of CETA, 1985 is based on the heading 44.12 in HSN. Since in the instant case there is no outer plies or a panel in the product before us. We find that note 5 of chapter 44 is not applicable to the present case.
13. We have also perused the judgments cited by the appellant. We note that in Wood Craft case the product was different and the Apex Court while examining the ambit and scope of the expressions similar laminated wood "the expression similar laminated wood is a significant expression. It does not mean identical but it mean corresponding to or resembling to in many respects, somewhat like; or having a general likeness. The statute does not contemplate that goods classed under the words of similar description shall be in all respects the same. If it did, these words.would be unnecessary. These were intended to embrace goods but not identical with those goods...."
14. Thus, we find that since the product in the case of Wood Craft was different and had a particular construction therefore the ratio of the judgment of the Apex Court in the case is not fully applicable to the facts of the present case.
15. A study of the 3 tariff entries shows that tariff entry 44.06 covers particle board and similar board of wood etc. Tariff entry 44.08 covers plywood veneered panel and similar laminated wood. A closure study of these three entries shows that it is not only particle board that is covered under 44.06 but it covers similar board of wood. Thus, the term similar appears under chapter 44.06 as well as under chapter 44.08. Since the particle board is specifically covered under 44.06 therefore laminated particle board will come within the scope of similar board of wood under chapter heading 44.06.
16. We have also seen the judgment of this Tribunal in the case of Bombay Burmah Trading Corpn. This decision is specifically on laminated particle board and therefore squarely covers the goods in dispute before us.
17. We have also perused the decision of this Tribunal in the case of Western India Plywoods v. CCE, Cochin reported in 1998 (102) E.L.T. 628 whereunder the Tribunal examined the scope of Apex Court's decision in the case of Wood Craft also. We find that the ratio of the judgment in the case of Western India helped us to interpret the entries precisely.
18. Having regard to the facts and the above discussions as also the case law in the case of Bombay Burmah Trading Corpn., we hold that the product is classifiable under chapter heading 44.06/44.07. In the above view of the matter the appeal filed by the Revenue is rejected.