Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Fibrotec India on 13 December, 1996
Equivalent citations: 1997(90)ELT489(TRI-DEL)
ORDER
S.K. Bhatnagar, Vice President
1. This is a Department's appeal against the order-in-appeal passed by the Collector of Central Excise (Appeals) Bombay dated 28-9-1989.
2. A notice for hearing was duly issued to the Respondents. However, neither any appearance has been caused, nor there is any other communication requesting for adjournment or otherwise. Hence, we have gone through the records and heard the Ld. DR.
3. Ld. DR stated that the respondents were engaged in the manufacture of (i) Fibre glass Reinforced Polyester Translucent Roofings (ii) Fibre glass Reinforced Polyester wrinkle glass and (iii) Fibre glass Reinforced Polyester Moulded Articles. They had filed a classification list effective from 1st April, 1987, and the dispute relates to the classification of the product at Sr. No. 1 & 2 thereof i.e. whether they were classifiable under Heading 3920.31 as claimed by the Department or under 7014.00 in which the assessee had classified them.
4. The A.C. had approved the classification list, and therefore an appeal was filed by the Department before Collector (Appeals).
5. The Collector (Appeals) classified these products under Chapter Heading 39 on the ground that both the respondents and the appellant had agreed that the impugned goods fall under Chapter Heading 39, and considered as to which sub-heading under Chapter 39 would be relevant.
6. It is the view of the Department that these goods are covered under sub-heading 3920.31 in view of the fact that these goods are obtained by compressing glass fibres impregnated with plastics, having a hard, rigid character and hence have lost the character of articles of glass fibre. The respondents have however contended that the goods are classifiable under sub-heading 3925.90 as builders-ware made of plastics.
7. The ld. Collector (Appeals) has referred to Chapter Note ll(b) of Chapter 39 but according to the Department his conclusion is incorrect. The Department's view point is that Chapter Note 11 provides that Heading 39.25 applies only to the articles mentioned under it, not being product covered by any of the earlier headings of sub-chapter II. From this note it is evident that Heading 39.25 is a residuary entry and goods will fall under this heading only when they are not covered by any of the earlier headings of sub-chapter II. Since rigid sheets of plastics are covered under Heading No. 39.20 which is a heading preceding Heading 39.25, hence, even if Chapter [Note] lib is applied the goods are correctly classifiable under 3920.31 and not under Heading 3925.90. The product being rigid sheets it is Chapter Note 10 which is also required to be taken into account as this chapter note refers to plates, sheets, films and strips.
8. It was therefore Department's contention that reading the two Chapter Notes 10 & 11 the items would be more appropriately classifiable under 3920.31.
9. We have considered the above submissions. We observe that at this stage there is no dispute about the chapter as both the sides have agreed that the products will fall under Chapter 39. As regards the rival entries, they read as under :-
3920.31 "Rigid plates, sheets, film, foil and strip" 3925.90 Other
"OTHER ARTICLES OF PLASTICS AND ARTICLES OF OTHER MATERIALS OF HEADING NOS. 39.01 TO 39.14"
10. We also observe that Chapter Note 10 reads as follows :-
"In Heading Nos. 39.20 and 39.21, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut, they become articles ready for use)."
And Chapter Note 11 states inter alia that :-
"Heading No. 39.25 applies only to the following articles, not being products covered by any of the earlier heading of Sub-Chapter II:
(a)...
(b) Structural elements used, for example, in floors, walls or partitions, ceilings or roofs;
(c)to(j)..."
11. Ld. DR is correct to the extent of pointing out that Heading No. 39.25 applies only to the types of items mentioned therein but as seen from the above reproduction, the Sub-clause (b) thereof covers structural elements, and floors and walls or partitions and ceiling and roofs are mentioned as an example. Therefore, the products which are commercially known in the market as FRP Roofings will be covered by this chapter note, in the absence of any evidence to the contrary. Similarly, the respondents have stated that other product FRP wrinkled glass is used for partition and therefore this will also be covered by a Sub-clause (b) in view of the stated use which has not been contradicted or shown to be wrong. The main thing to be noted is that this Sub-clause covers structural elements and the items in question are apparently of a type which are merely considered as builders-ware of plastics.
12. Ld. DR is of course correct in pointing out that 39.25 covers such articles which are not elsewhere specified or included, but in view of the above position, the articles cannot be said to fall under Heading 3920.31 because the headings have to be read in the light of the chapter notes.
13. We have also taken note of the fact that the ld. Collector has ob-. served that the respondents had submitted before him literature to prove their point that corrugated sheets and wrinkled glasses are used as builders-ware and had submitted before him not only the process of manufacture but also the invoices and documents to prove the end use of the product and the Department has not produced anything to the contrary. Therefore, Department contentions remains unsubstantiated, and there is no reason for us to interfere with the order of the Collector regarding the classification of the above products. Hence, the appeal is rejected as already announced in the open court.