1995(03)LCX0082

IN THE CEGAT, SPECIAL BENCH `D’, NEW DELHI

S/Shri G.P. Agarwal, Member (J), P.K. Kapoor, Member (T) and  G.R. Sharma, Member (T)

COLLECTOR OF C. EX., VADODARA

Versus

KEDIA AGGLOMERATED MARBLES LTD.

Order No. 113/95-D, dated 24-3-1995 in Appeal No. E/2102/93-D &E/CO/519/93-D

Cases Quoted

Mridul Enterprises v. Collector — 1980 (037) ELT 279                                                                            [Paras 4, 10]

Shon Ceramics Pvt. Ltd. v. Collector — 1991 (052) ELT 608                                                                  [Paras 4, 10]

Novopan India Ltd. v. Collector — 1994(09)LCX0128 Eq 1994 (073) ELT 0769 (SC)                                                                         [Para 7]

Dunlop India Ltd. v. UOI — 1975(10)LCX0016 Eq 1983 (013) ELT 1566 (SC)                                                                                   [Para 9]

Advocated By : Shri Mohan Lal, JDR, for the Appellant.

 Shri Willingdon Christian, Advocate, for the Respondent.

[Order per : P.K. Kapoor, Member (T)]. - The above-captioned appeal and cross-objection arise out of the order dated 23-6-1993 passed by the Collector of Central Excise (Appeals), Ahmedabad. Briefly stated the facts of the case are that the respondents who are engaged in the manufacture of agglomerated marble filed a Classification List No. 73/89-90 effective from 20-3-1990 claiming classification of `agglomerated marble’ in slab under sub-heading 2504.21 and `agglomerated marble tiles’ under sub-heading 2504.31 of the Central Excise Tariff. The Department was of the view that the respondents’ products not being mineral products but being mainly manufactured products made by mixing crushed marble in the form of chips, cement/resin and other additives and setting the mixture in moulds for formation of blocks, usable for cutting into tiles, they were correctly classifiable under Heading 6807 of the Central Excise Tariff. The respondents were therefore served with a show cause notice requiring them to show cause as to why their products should not be classified under Heading 6807 as “All other articles of stone, Plaster, Cement, Asbestos, Mica or similar materials not elsewhere specified or included”. After taking into account the respondents’ submissions, the Assistant Collector held that the disputed products being known as `Agglomerated marble slabs/tiles’ were correctly classifiable under Chapter 25 of the Central Excise Tariff. He therefore approved the classification list filed by the respondents and also dropped the show cause notice proposing to classify the products in question under Heading 6807 of the Central Excise Tariff.

2. Against the order passed by the Assistant Collector, the Department preferred an appeal before the Collector, Central Excise (Appeals). While reiterating their case that being composed mainly of marble the products in question were classifiable under Heading 25.04, the respondents contended that in case their products were held as classifiable under Heading 68.07 then they would be eligible for exemption under Notification No. 59/90, dated 20-3-1990 since the `agglomerated marble tiles’ in question were known as `mosaic tiles’. They also relied upon affidavits of certain parties to the effect that “agglomerated marble tiles” were also known as “mosaic tiles” in the trade. By the impugned order the Collector (Appeals) held that the products in question being only imitation marble and not marble were correctly classifiable under Heading 68.07. He, however, accepted the respondents’ claim that `agglomerated tiles’ were `mosaic tiles’ eligible for exemption under Notification No. 59/90, dated 20-3-1990.

3. On behalf of the Revenue, Shri Mohan Lal, learned JDR submitted that the “agglomerated marble slabs/tiles” in question, were not in the nature of marble. He contended that the products in question emerge after an elaborate process of manufacture and therefore they were correctly held by the Collector (Appeals) as classifiable under Heading 68.07 of the Central Excise Tariff. He stated that the Collector (Appeals) had erred in holding that the “agglomerated marble tiles” in question were `mosaic tiles’ eligible for exemption under Notification No. 59/90, dated 20-3-1990. He contended that the products in question were known in the trade only as `agglomerated marble tiles’. He stated that the product commonly known as `mosaic tiles’ was different. He referred to the relevant classification list and the respondents’ literature/sale invoices and contended that had the product been known as `mosaic tiles’ the respondents would have not described it simply as `agglomerated marble tiles’ in all the relevant documents. He contended that the affidavits on which the Collector (Appeals) had relied while arriving at the finding that the tiles in question were known in the trade as `mosaic tiles’ have to be rejected since they were identically worded and had evidently been given at the instance of the respondents. He added that the Collector (Appeals) had also erred in relying on the dictionary meaning of the word “mosaic” for arriving at his finding that the tiles in question could be treated as “mosaic tiles”. He stated that the respondents had described the goods only as “agglomerated marble tiles” and not as “mosaic tiles” in all the relevant documents. He contended that the report of the Chemical Examiner could not be of any assistance to the respondents since the literature which was produced by the respondents before the Chemical Examiner had not been filed before the Tribunal. He pleaded that the impugned order holding the goods as eligible for exemption under Notification No. 59/90, dated 20-3-1990 may be set aside.

4. Appearing on behalf of the respondents, Shri Willingdon Christian, learned Advocate stated that the respondents’ case is that in view of the fact that Note 2 to Chapter 25 of the Tariff applies only to Heading Nos. 25.01, 25.03 and 25.05 of the Central Excise Tariff notwithstanding the manufacturing process involved, the disputed agglomerated slabs/tiles were correctly classifiable under Heading 25.04 since they were composed mainly of mineral substance namely, marble. He submitted that the respondents’ alternative plea was that in case the goods in question are held as classifiable under Heading 68.07, then agglomerated tiles which are known by the trade as “mosaic tiles” would be eligible for the benefit of exemption under Notification No. 59/90, dated 20-3-1990. He submitted that there was no infirmity in the findings of the Collector (Appeals) since he had relied upon the report of the Chemical Examiner and the affidavits of the persons who were conversant with the goods in question. He added that as observed by the Collector (Appeals) the dictionary meaning of the word “mosaic” also supports the respondents’ claim that the tiles in question had to be treated as “mosaic tiles” since they had a pattern or design. He pleaded for the rejection of the appeal on the ground that the Department had not produced any evidence to establish that the tiles in question were not “mosaic tiles”. In support of his contention he placed reliance on the following case law :

1. Mridul Enterprises v. Collector of Central Excise - 1988 (037) ELT 279;

2. Shon Ceramics Pvt. Ltd. v. Collector of Central Excise - 1991 (052) ELT 608.

5. We have examined the records of the case and considered the submissions made on behalf of both sides. It is seen that the main points that arise for consideration in this case are whether :

(i) `agglomerated marble blocks/tiles are classifiable under Heading 25.04 as contended by the respondents or under Heading 67.08 of the Central Excise Tariff as held in the impugned order;

(ii) `agglomerated marble tiles’ if held as classifiable under Heading 67.08 of the Central Excise Tariff would be eligible for exemption under Notification No. 59/90, dated 20-3-1990.

6. In order to determine the correct classification of the disputed “agglomerated marble blocks/tiles” under Central Excise Tariff, we refer to the competing headings namely, 25.04 and 67.08 which are reproduced below : -

It is seen that “agglomerated marble” unlike the common `marble’ is not a mineral product. Agglomerated marble slabs are made out of crushed marble mixed with cement, resin and certain other additives, which after curing are cut into slabs. Slabs of agglomerted marble are polished and cut into tiles. Since Heading 25.04 covers “marble” which is a mineral product, in our view the classification of agglomerated marble which is manufactured out of marble, cement, resin and other materials under the said heading has to be ruled out and as an article produced mainly out of crushed marble, which is a hard calcarious stone, it would be specifically covered by Heading 68.07 of the Central Excise Tariff. We find that Note 2 to Chapter 25 which was referred to by the learned Counsel for the respondents relates only to Heading Nos. 25.01, 25.03 and 25.05. Hence we do not find any infirmity in the finding that “agglomerated marble blocks/tiles” are classifiable under Heading 68.07 of the Central Excise Tariff.

7. The next point to be examined is whether the “agglomerated marble tiles” in question could be deemed as “mosaic tiles” exempt from duty in terms of Notification No. 59/90, dated 20-3-1990. In this regard it is seen that relevant entry in the Table appended to the said notification listing the exempted products reads as “Mosaic Tiles, that is to say, tiles known commercially as `mosaic tiles’. Its is seen that the finding of the Collector (Appeals) that the disputed ”agglomerated marble tiles" were known in the trade as `mosaic tiles’ and hence they were covered by Notification No. 59/90, dated 20-3-1990 was based mainly on the affidavits of Shri Manoj Chimanbhai Patel, an Architect, Shri J.N. Sharma, Partner M/s. Art Granito and Shri Purshottamdas Bansal. The respondents have contended that these affidavits cannot be relied upon since the identical wordings of these affidavits was indicative of the fact that the concerned persons had in a mechanical and stereo-typed manner stated whatever the respondents wanted them to say. We are inclined to agree with the appellants that the affidavits in question have to be deemed as having been procured by the respondents to suit their purpose since in spite of the concerned persons being based in different cities the operative parts of their certificates are identically worded. It has been pointed out by the appellants that in these affidavits, after stating that the products were known as `agglomerated marble tiles’ the concerned persons had gone on to state that they were known as `mosaic tiles’ In the case of Novopan India Ltd. v. Collector of Central Excise & Customs, Hyderabad reported in 1994(09)LCX0128 Eq 1994 (073) ELT 0769 (S.C), the Hon’ble Supreme Court has held that affidavits of experts prepared with a view to bolster the party’s case in the proceedings and when their opinion is not backed by any technical authority or literature or authority on the subject would not be reliable. For these reasons we hold that the affidavits filed by the respondents do not inspire any confidence and cannot be of any assistance to them.

8. We find that in the literature/pamphlet published by the respondents for the benefit of their customers, they have described their product as “Marbella agglomerated marble” and it has not been described anywhere as `mosaic tiles’. It is seen that in Invoice No. MT/228/92-93, dated 30-7-1992 issued by the respondents in favour of one of their customers, they had described the goods in question simply as “Marbellam-Tiles” and not as “Mosaic Tiles”. In our view the information given in respect of the disputed product in the pamphlet brought out by the repondents for the guidance of their customers and the copy of a sales invoice issued by the respondents describing the goods simply as “Marbellam Tiles”, which are available in the records of the case clearly establish that the tiles in question are not commercially known as “Mosaic Tiles”.

9. As discussed above, in view of the wordings of the relevant entry in Notification No. 59/90, dated 20-3-1990 all that was required to be determined in this case was whether the “agglomerated marble tiles” manufactured by the respondents were tiles commercially known as “mosaic tiles”. In support of his contention that the disputed “agglomerated marble tiles” were commercially known as `mosaic tiles’, the learned Counsel for the respondents has referred to the impugned order in which the Collector (Appeals) had relied upon the dictionary meaning of the word “mosaic” and also the report of the Chemical Examiner while arriving at his finding that the “agglomerated marble tiles” manufactured by the respondents were commercially known as `mosaic tiles’. In this regard we find that the Collector (Appeals) had clearly erred since it has been held by the Hon’ble Supreme Court in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. v. Union of India reported in 1975(10)LCX0016 Eq 1983 (013) ELT 1566 (SC) that in a taxing statute the acceptation of a particular word by the Trade and its popular meaning should commend itself to the authority. It has therefore to be held that the dictionary meaning of the word `mosaic’ and the Chemical Examiner’s report on which reliance has been placed by the respondents cannot be of any assistance to them.

10. In support of their claim that “agglomerated marble tiles” in question have to be deemed as “mosaic tiles” the respondents have relied upon the Tribunal’s decisions in the case of Mridul Enterprises v. CCE (supra) and Shon Ceramics Pvt. Ltd. v. CCE (supra). In the case of Mridul Enterprises, the question that arose for consideration was whether unicolour glass tiles manufactured by the appellants were classifiable as “mosaic tiles” under Item 23D of the Central Excise Tariff or under Item 23A of the Tariff as “glass and glassware”. In the case of Shon Ceramics Pvt. Ltd. v. CCE (supra) as well the issue for consideration was whether the tiles manufactured by the appellants were `mosaic tiles’ falling under Item 23D of the Central Excise Tariff. It is seen that in these cases the appellants had produced evidence to establish that the product manufactured was known commercially as `mosaic tiles’, whereas the department had failed to produce any material evidence to rebut it, the Tribunal had held that the tiles in question were `mosaic tiles’. In the instant case, as held by us the affidavits of certain persons filed by the respondents to the effect that the `agglomerated marble tiles’ are known in the trade as `mosaic tiles’ cannot be relied upon and the respondents’ own literature and commercial invoices also do not describe the product as `mosaic tiles’. Under these circumstances, we hold that the decisions of the Tribunal relied upon by the respondents cannot be of any assistance to them.

11. As described by us earlier in the commercial literature brought out by the respondents and in the invoices issued by them the product in question was being described only as “Marbella agglomerated marble” and “Marbellam Tiles” and not as “Mosaic Tiles”. Hence, it has to be held that commercially the tiles in question were not known as “mosaic tiles”. We, therefore, hold that the Collector (Appeals) finding that the disputed goods were `mosaic tiles’ eligible for exemption under Notification No. 59/90, dated 20-3-1990 is not sustainable.

12. In view of the foregoing, we set aside the impugned order and allow the appeal.

_______

Equivalent 1995 (77) ELT 710 (Tribunal)