2005(12)LCX0331

In the Customs, Excise & Service Tax Appellate Tribunal, Bangalore

Dr. S.L. Peeran, Member (Judicial) and Shri T.K. Jayaraman, Member (Technical)

Indal Hydro Extrusions Ltd.

Versus

Commissioner of Customs, Bangalore

Final. Order No. 2155/2005 dt. 7.12.2005 certified on 29.12.2005 in Appeal No. C/51/2003

Cases Quoted -

CCE, Hyderabad Vs. Bakelite Hylam Ltd. 1997 (019) RLT 0203 (SC) - Referred[Para 4 (v)]

Geep Flashlight Industries Ltd. Vs. UOI & Ors. 1984(08)LCX0021 Eq 1985 (022) ELT 0003 (SC) - Relied on[Paras 4 (v), 6]

MRF Ltd. Vs. UOI & Ors., 1985(07)LCX0020 Eq 1985 (022) ELT 0005 (Bom.) - Relied on[Para 4 (v)]

Wiltech India Ltd. Vs. CCE, 1995(03)LCX0009 Eq 1996 (084) ELT 0005 (SC) - Referred[Paras 4 (v), 6]

Western India Plywoods Ltd. Vs. CC, Cochin 2005(10)LCX0001 Eq 2005 (070) RLT 0599 (SC) - Referred[Paras 4 (v), 6]

Abdul Glass Industries -Vs. CCE, 1986(07)LCX0018 Eq 1986 (025) ELT 0473 (SC) - Referred [Paras 4 (v), 6]

Advocated By -

Shri M.S. Bheemasena Rao, Consultant for Appellants
Shri K.S. Reddy, JDR for Respondent

Per T.K. Jayaraman:

This is an appeal filed against the Order-in-Appeal No. 66/2002-Cus. dated 16.10.2002 passed by the Commissioner of Central Excise & Customs (Appeals), Bangalore.


2. The brief facts of the case are as follows:-


The appellants imported two numbers of Bullet Proof Doors and Windows. In the Bill of Entry filed for clearance of the goods, they claimed the classification under Central Excise Tariff Heading 7610 which relates to "aluminium structures, aluminium doors", etc. On examination/ it was found that the goods have aluminium frame with bullet proof glass. Revenue felt that the goods merit classification under 7020.10 which covers "other articles of glasses". The appellants challenged the classification before the Commissioner (Appeals). The Commissioner (Appeals) upheld the classification decided by the lower authority under Chapter 70. The appellants are aggrieved over the order of the Commissioner (Appeals). Hence, they have come before the Tribunal for relief.


3. Shri M.S. Bheemasena Rao, learned Consultant appeared for the appellants
and Shri K.S. Reddy/ learned JDR for the Revenue.


4. The learned Consultant adduced the following points:-

(i) The goods are commercially known and marketed as bullet proof doors.

(ii) Rule 2 (a) of the Interpretative Rules states that any reference to "an article shall be taken to include a reference to that article incomplete or unfinished, provided that as presented the incomplete article or finished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented "unassembled or disassembled condition". This criterion is fulfilled in the instant case.

(iii) As per Rule 3 (a) of the Interpretative Rule, preference will have to be given to the specific description of the item instead of the general description. In the instant case/ the specific description is doors and windows.

(iv) HSN Note under CH 70 opines that glass once framed in any material shall classify under the CH of the material which frames the glass.

(v) The learned Consultant relied on the following case laws;-

(a) Collector of Central Excise, Hyderabad Vs. Bakelite Hylam Ltd., 1997 (019) RLT 0203 (SC)=1997 (091) ELT 0073 (SC)

(b) Geep Flashlight Industries Ltd, Vs. HOI & Ors., 19S5 (022) ELT 0003 (SC)

(c) MRF Ltd. Vs. UOI & Ors., 1985(07)LCX0020 Eq 1985 (022) ELT 0005 (Bom.)

(d) Wiltech India Ltd. Vs. Collector of Central Excise, 1995(03)LCX0009 Eq 1996 (084) ELT 0005 (SC)

(e) Western India Plywoods Ltd. Vs. Collector of Customs, Cochin, 2005(10)LCX0001 Eq 2005 (070) RLT 0599 (SC)=2005(10)LCX0001 Eq 2005 (188) ELT 0365 (SC)

(f) Abdul Glass Industries Vs. Collector of Central Excise, 1986(07)LCX0018 Eq 1986 (025) ELT 0473 (SC)


5. The learned JDR pointed out that the major portion of the goods is made of glass which has given the essential characteristic for the impugned goods. Hence, they should be rightly classified as "articles of glass".


6. We have gone through the records of the case carefully. The appellants decided to participate in the Fire and Security Expo '98, an exhibition organized by the Confederation of the Indian Industry, Chandigarh. Therefore, they ordered among other things for bullet proof windows/doors samples. Accordingly the foreign suppliers supplied the item. The invoice describes the item as bullet proof doors and windows. Therefore, it is clear that commercially the items are known as doors/windows. In their communication to the Assistant Commissioner of Customs, Air Cargo Complex, Bangalore, the appellants have given the following details with regard to the imported items:-

" 1. Every window essentially has a filler material which can be glass, wood or metal depending on the use. However, a window/door is broadly classified depending on the material of the outer frame and the shutter frame irrespective of the filler material.

2. The cost of filler material is practically very low compared to the frame, accessory cost and the cost of fabrication.

3. The aluminium window manufacturers in India sell aluminium windows including glass under Central Excise Chapter 76, only even though the window contains majority portion as glass, the glass being only the filler medium.

4. We have imported aluminium windows which are incidentally meant for security requirement. However these are basically aluminium windows.

5. We are herewith producing the copy of the invoice and Bill of Entry wherein we have imported similar type of window and the same is cleared under chapter No. 7610.10 (20%+2%+15%), for your verification.

6. In the circumstances, we request your goodselves to permit us to clear the said consignment under Chapter No. 76 only and do the needful."

The fact that the impugned item is bullet proof glass door/window with aluminium frame is not in dispute as this is very clear from the Order-in-Original. The Tariff Heading 7610 reads as follows:-

The Original authority has stated that they have inspected the item and it cannot be considered as aluminium door as the frame only is made of aluminium. The material which gives the essential character of the goods, i.e. bullet proof or fire resistant is the glass. In these circumstances he has no other option but to classify the goods under Heading 7020.90 which reads as follows:-

The Commissioner (Appeals) has also*given a finding that the essential characteristic to the subject goods are imparted not by the aluminium case or the frame but by the bullet proof glass. He has also observed that for the above reason, the price of the imported goods appears to be quite high. He has also stated that the bullet proof doors and windows in the common parlarfce are not known as aluminium doors or windows. In view of the above reason, the lower authorities have rejected the classification Heading 76.10. We have examined the case laws cited by the appellants. The Apex Court while dealing with the classification of Plastic torches in the case of Geep flashlight Industries Ltd. (supra) has held that Articles made of plastic means article made wholly of commodity commercially known as plastics and not articles made from plastics along with other material. The Apex Court decided that the classification of plastic torches cannot be covered under Item ISA (2) and it can be covered only under residuary item No. 68 of the Central Excise Tariff. It has been held that an expression used in taxing statute for describing a commodity, it is generally given to a person in the trade or in the market of commodity and in the sense the person conversant with the subject matter of statute and dealing with it would attribute to it. In the Wiltech India Ltd. (supra) case, the Apex Court held that Plastic razor is not wholly made of plastic but of plastic and iron rods not treatable as made wholly from plastic, hence it cannot be treated as "articles of plastic". The Apex Court in the case of Western India Plywoods Ltd. (supra) has held that application of residuary entry should be made with extreme caution, being attracted only when the no other provision expressly or by necessary implication applies to the goods in question. In the Abdul Glass Industry Ltd. (supra) case, it has been held that the identity of an article is associated with primary function and in the case of glass mirror the consumer recalls primarily the reflective function of the article rather than anything else. Hence, it was held that glass mirror cannot be treated as glass and glass article. Similarly screen for a motor vehicle cannot be treated as glass and glass article. Since the impugned item is actually bullet proof glass door or window with aluminium frame, going by the ratio of the Apex Court decisions cited by the learned Advocate, they are not wholly made of glass and hence they cannot be held as "articles of glass". A door can be made of different material, e.g. wooden door is known only as a door and not as "an article of wood". However the lower authorities had much hesitation in classifying the impugned goods as aluminium doors for the reason that the aluminium in the impugned goods is confined to frame and part of frame only. The contention of the appellants in their letter to Assistant Commissioner is that every window, door is broadly classified depending on the material of the outer irrespective of the filler material which can be glass, wood or metal. It has also been stated that the cost of filler material is practically low comparing to the frame. It was pointed out that the aluminium window in India is sold as aluminium window including glass under Central Excise Tariff Heading 76 only even though the window contains majority portion as glass, the glass being only the filler medium. After going through the contentions of the appellants, we feel that the impugned goods should be classified only as aluminium doors/windows as they can be more appropriately called as bullet proof glass doors/wihdows with aluminium frame rather than as glass article. Classification as Aluminium Doors is more apt, if not accurate, than as 'articles of glass'. Incidentally, it is not only doors/windows but their frame also have been classified under Heading 7610.10. In view of the above, we are inclined to allow the appeal of the appellants.

Pronounced in the open Court on 7.12.2005.

Equivalent 2006 (074) RLT 0829 (CESTAT-Ban.)

Equivalent 2006 (200) ELT 0165 (Tri. - Bang.)