Custom, Excise & Service Tax Tribunal
The Commissioner Of Central Excise vs Rotomatic Containers Pvt Ltd on 12 June, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.E/1631/03 (Arising out of Order-in-Appeal No.CEX.XI/JMJ/35/916/NSK/ APPEAL/2003 dated 28/02/2003 passed by Commissioner of Central Excise & Customs (Appeals), Nasik) For approval and signature: Honble Mr. M.V.Ravindran, Member (Judicial) Honble Mr. K.K.Agarwal, Member (Technical) ====================================================
1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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The Commissioner of Central Excise,
Nasik Appellants
Vs.
Rotomatic Containers Pvt Ltd., Respondents
Appearance:
Shri.N.A.Sayed, JDR for Appellants
None - for Respondents
CORAM:
Shri. M.V.Ravindran, Member (Judicial)
Shri. K.K. Agarwal, Member (Technical)
Date of hearing : 12/06/2008
Date of decision : 12/06/2008
O R D E R No:..
Per: Mr. M.V. Ravindran, Member (Judicial)
1. This appeal is filed by the revenue against the order-in-appeal No.CEX.XI/JMJ/35/916/NSK/APPEAL/2003 dated 28/02/2003.
2. None appeared on behalf of the respondent despite notice nor there is any request for adjournment.
3. Since the issue involved is in a narrow compass, the appeal taken up for disposal in the absence of any representation from the respondent.
4. Heard the Ld. JDR and perused the records.
5. It is the submission of the JDR that the issue involved in this case is regarding dutyability of the product Plastic tanks which are cleared by the respondents by availing exemption Notification No.15/94/CE dated 01/03/94 during the period December 96 to March 97. It is his submission that the tanks, which were cleared by the appellants were meant to store chemicals.
6. It is his submission that the said tank are classifiable under Chapter heading 3925.10 and duty payable is 25% advolerem and no exemption is eligible to them as the tanks are more than 300 Ltrs. Capacity. It is his submission that reliance placed by the Ld. Commissioner (Appeals) in the case of Heliplastic Industries Vs. CCE, as reported at 1993 (63) ELT 178 and CCE Vs.Chemical Process Equipment Pvt Ltd., as reported at 1996 (88) ELT 157 (Tri) are not good law, as the Honble Supreme Court in the case of CCE Bombay Vs. K.W.H Heliplastics Ltd., as reported at 1998 (97) ELT 385 (SC) has set aside the decision of Tribunal.
7. On perusal of the order-in-appeal, we find that the Commissioner (Appeals) has given to the following findings:-
However, on scrutiny of their documents and the various judgements furnished by them it is seen that these tanks were meant to store chemicals and not water and hence manufactured out of special composition of material with were specific wall thickness 4 times more 3 times heavier than normal water tanks. These tanks had ultra violet stabilizers to stop radiation and were three times costlier than the water tanks specifically used. The Assistant Commissioner has failed to appreciate the fact that the chemical tanks are being sold by the appellants to the industry, who use them for storing chemicals and they have not sold their tanks to a builder because these are not used by the builders. A list of customers was also scrutinized. Hence, they may be classified under CHS 3926.90 as other articles of plastics and are therefore eligible to claim exemption under notification 15/94, a similar issue has been decided in the case of Chemical tanks viz., Heliplastic Industries Vs. Central Excise Special Bench, CEGAT, Delhi (1993 (63) ELT 178 and also CCE Bombay Vs. Chemical Process Equipments Pvt Ltd., (1996 (88) ELT 157 Tribunal Graphite Vicard Industries Ltd., Vs. CCE, Aurangabad 1997 (94) ELT 154 Tribunal).
8. We find that the decision and order of the Tribunal in the case of Heliplastic Industries (supra) was carried in appeal by the revenue to the Apex Court. The Apex Court while setting aside the Tribunals order held as under:-
Apparently, Rules 1, 2 and 3 are not applicable for resolving the dispute and, as such, what was required to be done by the Tribunal in the present case was, to find out the relationship of goods manufactured by the respondents with the description of goods under disputed headings of the classification list, as contended by the parties. The relationship of goods with particular heading depends upon the description, purpose and use of the goods. Note 11(a) of Chapter 39 of the Act, provides that Heading 39.25 applies also to reservoir, tanks, including septic tank, vats and similar containers. The purpose and use of these goods is to hold liquids or something in liquid form in process of manufacture as in tanning and dyeing etc., and thus can be used and are capable of being used for water storage in connection with raising of construction or mixing construction materials. It is not disputed that the goods manufactured by the respondent are tanks and vats. The description and usage of tanks and vats manufactured by the respondent tallies with the description of goods given in Note 11(a) of Chapter 39 of the Act. We, therefore, find relationship between the goods manufactured by the respondent with the Heading 39.25. Once it is established that the description of the goods manufactured by the respondent are akin to description of goods given under Heading 39.25 and sub-heading 3925.10, there is no difficulty in holding that the tanks and vats manufactured by the respondent would fall under Heading 39.25 of the Tariff. We accordingly hold that tanks and vats manufactured by the respondent are classifiable as builders ware of plastics and the view taken by the Tribunal that the classification of goods, i.e., tanks and vats would be appropriate under sub-heading 3926.90 of the classification list, and are exempt from excise duty, is erroneous.
9. It can be noticed that the law on the point is settled by the full Bench of the Apex Court. Respectfully following the same, we set aside the impugned order of the Ld. Commissioner (Appeals) and restore the order of the adjudicating authority.
10. Appeal allowed as indicated herein above.
(Pronounced in Court) (K.K. Agarwal) Member (Technical) (M.V.Ravindran) Member (Judicial) pj 1 4 2