Customs, Excise and Gold Tribunal - Delhi
Golden Polymarbles Ltd. vs Collector Of Central Excise on 10 November, 1998
Equivalent citations: 1999ECR442(TRI.-DELHI), 1998(105)ELT337(TRI-DEL)
ORDER P.C. Jain, Member (T)
1. Question involved, in the present matter, is of classification of a product described by the appellants herein as artificial marble treating it as "Marble in slab" under Tariff Heading 25.04 of CETA, 1985.
2. Composition of the product manufactured is as follows : -
"(a) Marble : 70% (b) P.V.C. resin : 10% (c) Calcium Carbonate : 5% and (d) Fillers and pigments : 15%".
3. A show cause notice was issued to the appellants as to why their claim for classification of the said product under Heading 25.04 be not modified to Tariff Heading 68.07 as "articles of stone" inasmuch as process of manufacture basically involved solidification of unsaturated polyester resin in the presence of filler material and colourants.
4. On adjudication the appellants did not succeed in their claim. Nor did they get success at the lower appellate stage. Hence this appeal before us.
5. Learned Advocate for the appellants has submitted that the product is bought and sold in the market as 'marble' inasmuch as predominant content in the product, as evident from the composition given above, is of marble. It is the marble content which gives the essential character to the product. Relying on Rule 3(b) of "Rules for the Interpretation of this Schedule", learned Advocate pleads for classification of the product under Tariff Heading 25.04. He relies for the above propositions on: -
(i) Rajasthan High Court's D.B. judgment in the case of Polar Marmo Agglomerates Ltd. v. U.O.I. 1994 (73) E.L.T. 536 (Raj.)
(ii) C.C.E., Vadodara v. Bhor Industries Ltd. 1998 (97) E.L.T. 91 (Tribunal).
15. Opposing the contentions, learned JDR, Shri A.K. Agarwal draws our attention to Tribunal's judgment in the case of C.C.E. v. Kedia Agglomerated Marbles Ltd. 1995 (77) E.L.T. 710 (Tribunal) which has held that 'agglomerated marble tiles', even though containing marble as a predominant constituent, are not classifiable under Tariff Heading 25.04 but are classifiable under Heading 68.07. Predominance of a material does not automatically impart the essential character to the product. For this proposition, learned Advocate relies on Supreme Court's judgment in the case of Bakelite Hylam 1997 (91) E.L.T. 13 (S.C.).
We have carefully considered the pleas advanced from both sides.
We are concerned, in this case, with classification of the product described by the appellants in their classification list as 'marble in slabs'.
6. We observe that the process of manufacture as described in the impugned order passed by Collector (Appeals) is akin to the process of manufacture of agglomerated marble slabs described in Polar Marmo (supra) Rajasthan High Court, after a detailed discussion, has held that agglomerate marble slabs fall under Heading 25.04.
7. We further observe that the judgment of the Tribunal in Kedia Agglomerated (supra) has not noticed the judgment of Rajasthan High Court. We also observe that the Tribunal's judgment turns upon the finding that Heading 25.04 in Chapter 25.04 relates only to 'mineral product' and the product in question is not a mineral product. This point has also been considered by the Hon'ble Rajasthan High Court noting that the product contains natural marble in predominant quantity.
8. Further, while we agree that a predominant material in a product may not necessarily impart the essential character to the product, but it does not mean that predominant material will never, in all cases, give essential character of the product. The product in the present case is bought and sold as 'marble in slabs' or as artificial marble. This name and character, namely of strength and durability attributed to a marble tile, is obtained from the marble contained in the product. In our view, marble content of the product gives to the product its essential character. Resins act only as binding agents of the constituent marble material. 'Article of stone' is a general item; Marble is a type of stone. Marble in slabs or in tiles are specifically mentioned in Heading 25.04.
9. In view of the above discussion, we set aside the impugned order and allow the appeal with consequential relief to the appellants.