Customs, Excise and Gold Tribunal - Delhi
Paisa Fund Glass Works vs Collector Of C. Ex. on 14 January, 1986
Equivalent citations: 1989(44)ELT683(TRI-DEL)
ORDER Harish Chander, Member (J)
1. M/s. Paisa Fund Glass Works, Talegaon Dabhade, Distt. Pune had filed a revision application to the Additional Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi being aggrieved from order in revision F.No. V.23A(30) 117/TB/78/275, dated 23-3-1981 passed by the Collector of Central Excise and Customs, Pune. After coming into existence of the Tribunal the said revision application stands transferred to the Tribunal under Section 35P of the Central Excises and Salt Act, 1944.
2. Briefly the facts of the case are that the appellant is a manufacturer of glass and glassware. The appellant had filed classification list No. 55/79 effective from 1-3-1979 and No. 74/79 effective from 12-12-1979 classifying their goods viz. Lenses which are used in Railway, Navy and Road Traffic Signals under Tariff Item 68 of the Central Excise Tariff for approval to the concerned Range Supdt. The Superintendent held that the said lenses were correctly classifiable under Tariff Item 68 of the Central Excise Tariff. Accordingly he accorded approval to the said classification lists on 19-12-1979. Later on it was felt by the revenue authorities that the impugned goods correctly fall within the scope of Tariff Item 23A(4) which reads "Other Glass and Glassware including Tableware" with effect from 1-3-1979. Accordingly, a show cause notice was issued to the party vide No. V-23A(30) 117/TB/78, dated 11-8-1980 under Section 35A of the Central Excises & Salt Act, 1944 asking them to show cause as to why the approval ac corded by the Superintendent be not set aside and why the impugned goods should not be classified under Tariff Item No. 23A(4) of the Central Excise Tariff. In reply to the show cause notice the appellant vide his letter dated 7-9-1980 stated that there were no proceedings before the Superintendent in regard to the classification of their products and therefore, no question of review of the decision/order was warranted as the party filed a revised classification list under specific dimension from the Superintendent under specific direction from the Superintendent as per the order-in-appeal No. 949/79, dated 16-8-1979 passed by the Appellate Collector of Central Excise, Bombay holding their products under Tariff Item 68 and hence the Collector had no jurisdiction to initiate review proceedings. The appellant had further contended that
(i) their products would fall under Tariff Item No. 68 of the Central Excise Tariff, as they are optically worked and made for use in the optical system of Railway Signal units and designed to possess specific photometric properties,
(ii) the sub-item (4) of Tariff Item 23A does not cover Glass which is optically worked so as to possess optical and photometric properties and the said Tariff Item would include only ordinary types of Glass which would not being a 'Flat Glass' including the types of Flat Glass mentioned in sub-item (I), which are required to be grouped under a general term 'Glass' in a separate sub-para. For this purpose the sub-item (4) was specifically, revised recently to include types of glass such as toughened glass, safety glass, mirror glass etc.,
(iii) as per Trade Notice No. 125/78, dated 17-5-1978 and Trade Notice No. 67/78, dated 30-5-1978 issued by the Bangalore and Chandigarh Collectorate respectively wherein it has been made clear that 'Diffusing Lenses' for automobile Headlights with optical properties/photometric properties * are outside the purview of the Tariff Item No. 23A(4) of the Central Excises Tariff,
(iv) their glass being a special kind of glass used in the manufacture of optical instruments for photography, astronomy, observation, armaments etc. and having 'fixed refractive index' fixed focal length and fixed configuration are for specific use for Railways in the Signal System and therefore they could not be used for any other purpose than that of the required one.
The learned Collector of Central Excise did not accept the argument of the appellant and held that the impugned goods were classifiable under Tariff Item No. 23A(4) of the Central Excise Tariff Act. Being aggrieved from the aforesaid order the appellant has come in appeal before this Tribunal.
3. Shri L.C. Mittal, the learned Advocate with Shri Padmakar R. Kibe, Chief Executive of the appellant, has appeared on behalf of the appellant. He has reiterated the facts. He has referred to the list of lenses manufactured by the appellant which appears at page 15 of the paper book. He has pleaded that the dispute is in respect of the item numbers 2 to 10. The same is reproduced as under:
"2. Inside stepped optical lens clear 138 mm dia x 89 mm focal length to RDSD's drg. No. S-2746 - BS - 623/1940 or IS 1975 -1961 & IRS 5-7.
3. Inside stepped optical lens, red 136 mm dia x 89 mm focal length RDSD drg. No. S-2748-BS-623/1940 or IS 1975 -1961 and as per IRS 5-7.
4. Inside stepped optical lens green 136 mm x 89 mm focal length to RDSD drg. No. S-2749-BS-623/1940 or IS 1975-1961 and as per IR 5-7.
5. Prismatic optical lens (8, 3/8") 213 mm dia. As per India Telephone Industries design red - BS-623/1940.
6. Prismatic optical lens 213 mm dia as per IT design - BS - 623/1940.
7. Prismatic Optical lens 213 mm dia as per ITI design yellow - BS - 623/1940.
8. Roundal convex 213 dia red to RSDS drg. S-2753 - BS - 623/1940 or IS/1975 -1961 and IRS 5-7.
9. Roundal convex 213 dia yellow to drg. No. RSD's S-2754 - BS - 623/1940 or IS -1975/1961 and IRS 5-7.
10. Roundal convex 213 mm dia green to RDSD drg. No. S-2758 - BS - 623/1940 or IS -1975 -1961 and IRS 5-7."
He has pleaded that the goods manufactured by the appellant are classifiable under Tariff Item 68 and the Revenue has classified the same under Tariff Item 23A(4). He has referred to order-in-appeal No. V-2(23A) 427/79, dated 16-8-1979 passed by the Appellate Collector of Central Excise where the Appellate Collector had given finding in respect of 7 items that the items manufactured by the appellant possess photometric properties and are classifiable under Tariff Item 68. He has referred to the letter dated 25-9-1979 which appears as Annexure IX of the revision application where the Superintendent of Central Excise had accepted the classification under Tariff Item 68 and had desired the appellant to file a revised classification list. The Superintendent of Central Excise had written the said letter keeping in view the order passed by the Appellate Collector of Central Excise and Trade Notice No. 104/78. He has also referred to show cause notice which appears on page 34 of the paper book. He has also referred to the order passed by the Collector of Central Excise reviewing the classification list filed by the appellant. He has also referred to the Assistant Collector's letter dated 4-12-1978 which appears on page 19 of the paper book. The learned Advocate has referred to BTN 70.18 which relates to optical glass and elements of optical glass, other than optically worked elements, blanks for corrective spectacle lenses. He has pleaded that item BTN 70.18 covers optical glass. He has referred to a judgment of the CEGAT in the case of Collector of Central Excise, Kanpur v. West Glass Works, Firozabad, reported in 1984 (17) E.L.T. 368 where the Tribunal had held that the headlight covers cannot be described as glass or glassware falling under Tariff Item 23 A(4) and they fall under Tariff Item 68 of Central Excise Tariff. He has also pleaded that an assessee files a classification list, the onus is on the Department to prove that the item does not fall in the declared classification and falls in some other heading. He has pleaded that the Revenue has failed to discharge the onus and as such the classification list as filed by the appellant should be accepted. Shri Padmakar, R. Kibe, Chief Executive, has pleaded that the optical glass is a plain glass with a definite refractive index. It is homogenous and has got a definite angle of refraction and the optically worked glass is a glass having a fixed focal lenght. Shri Mittal, the learned Advocate, has pleaded for the acceptance of the appeal.
4. In reply Shri Sachar, the learned JDR has pleaded that the finding of the Collector of Central Excise is correct. He has pleaded that glass is glass and a lens does not cease to be a glass and the same is correctly classifiable under Tariff Item 23A(4). He has referred to a judgment of the Gujarat High Court in the case of Darshan Hosiery . Mills v. Union of India, reported in 1980 (6) E.L.T. 390 wherein it was held that only those goods are classifiable under Tariff Item 68 in respect of which there is no specific entry. He has argued that under Central Excise Tariff Item 23A(4) there is a specific entry for glass and as such it is correctly classifiable under Tariff Item 23A(4). He has laid special emphasis on para 10 of the said judgment where there is mention of the words "not as were specified". He has also referred to another judgment in the case of Clinical Thermometer v. Collector of Customs, Bombay vide order No. 211, dated 24-6-1985.
He has pleaded for the dismissal of the appeal.
5. In reply Shri Mittal, the learned Advocate has again reiterated his arguments and has pleaded for acceptance of the appeal.
6. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that an optical glass cannot be equated with ordinary glass or glassware. An optical glass is no doubt a glass but it has got a definite refractive index and has also got a definite angle of refraction. BTN 70.18 is reproduced as under :-
"70.18 - Optical Glass and Elements of optical glass, other than optically worked elements, blanks for corrective spectacle lenses."
...
(I) The term 'optical glass' applies to special glasses used in the manufacture of optical instruments for photography, astronomy, observation (microscopy, navigation, etc.), armaments (sighting telescopes, etc.), laboratories etc. or for the manufacture of certain corrective lenses. These glasses, of which there is a great variety, are usually highly transparent. They may have special light absorptive properties and therefore be coloured or black. They are clear, homogenous, without air bubbles and veins, and have refractive indices and dispersive powers unusual in other glasses.
The optical elements of this heading (lenses, prisms etc.) are made from optical glass, either by cutting from sheets, strips, lumps or slabs or by pressing or moulding to the required shape.
(II) A part from the types of glass of optical quality described above, the corrective spectacle industry uses glass of other qualities obtained by casting, rolling or drawing. This gives plates (or sheets) from which small pieces and cut; these pieces are softened in a furnace and then pressed in moulds, either flat or curved. In some cases, spectacle lenses are made by moulding molten glass.
The heading covers:
(A) optical glass and optical blanks and elements thereof. The glass may be in irregularly shaped blocks or lumps, slabs, sheets, strip or moulded or cut out pieces (plates, discs, lenses, prisms, spectacle lenses etc.) provided that it has not been optically worked.
The present heading includes optical glass fibres consisting of concentric layers of glass of different refractive indices, either in the form of flexible bundles bound only at the ends or in the form of rigid elements in which the fibres are agglomerated by a binder (e.g. of artificial platic material), neither optically worked nor mounted.
(B) Blanks of non-optical glass for corrective spectacles lenses, i.e., pieces simply moulded and not optically worked. Prior to moulding this type of glass falls in Headings 70.04,70.05,70.06 or 70.07, as appropriate.
Optical working consists of grinding the surfaces first with coarse, and then with gradually finer abrasives. The successive operations are thus roughing, truing, smoothing and polishing.
Articles having undergone one or more of the processes preceding polishing * remain within the present heading. But elements which have the whole or part of one or more of then' surfaces polished to produce the required optical properties are excluded (Heading 90.01 or 90.02 according to whether they are unmounted or mounted - see corresponding Explanatory Notes).
Plates of optical glass which have merely been polished during manufacture for examination of the material are not treated as optically worked and therefore remain in this heading. Similarly, simple grinding of the edges of discs or lenses, without further .(Working, is not regarded as optical working.
Contact lenses of optical glass, which are placed directly on the eyeball, fall within Heading 90.01 provided that they are optically worked. Unmounted optical elements (including contact lenses) made of artificial plastic materials are classified in Heading 90.01 whether or not they are optically worked.
7. The Tribunal in the case of Collector of Central Excise, Kanpur v. West Glass Works, Firozabad had held that glass headlight covers are classifiable under Tariff Item 68 and not under Item 23 A(4) of the Central Excise Tariff and the headlight covers could not be described as glass or glassware falling under Tariff Item 23A(4). The learned Departmental Representative's argument to the effect that no glass item will go to Tariff Item 68 does not help him. The lenses manufactured by the appellant are optical glass with a definite refractive index. When the appellant had filed a classification list the onus was on the Revenue to prove that the item declared by the appellant in Tariff Item 68 falls in Tariff Item 23A(4). The Revenue has not been able to discharge the initial onus.
8. Keeping in view the aforesaid discussion and the earlier judgment of the Tribunal discussed above, we hold that the impugned items manufactured by the appellant, are classifiable under Tariff Item 68. In the result the order passed by the lower authority is quashed. In the result the appeal is allowed.