1997(01)LCX0043

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri G.A. Brahma Deva, Member (J) and J.H. Joglekar, Member (T)

COLLECTOR OF CENTRAL EXCISE, CALCUTTA

Versus

METROARK PVT. LTD.

Final Order No. E/289/97-B1, dated 24-1-1997 in Appeal No. E/2628/87-B1

CASE CITED

Collector v. Wood Craft Products Ltd. — 1995(03)LCX0070 Eq 1995 (077) ELT 0023 (S.C.) Followed                                 [Para 3]

Advocated By : Shri G.D. Sharma, JDR, for the Appellant.

 Shri K.K. Banerjee, Advocate, for the Respondents.

[Order per : J.H. Joglekar, Member (T)]. - The assessees filed classification lists claiming classification under Heading 85.46 for their various products enumerated therein. The Assistant Collector observed that goods consisted of silicons in primary form and approved their classification under Heading 39.10. Collector (Appeals) on interpretation of the Tariff observed that merely because the products were of silicon origin their classification under Chapter 39 was not proper. He, accordingly, classified the goods under Heading 85.46 resulting in this appeal from the Revenue coming before us.

2. We have heard Shri K.K. Banerjee, Advocate for the assessees and Shri G.D. Sharma, JDR for the Revenue.

3. The issue involves coverage of two entries namely 39.10 and 85.46. Description against sub-heading 39.10 is “Silicons in primary form” but does not define the term. It has been held by the Supreme Court in the case of C.C.E., Shillong v. Wood Craft Products Ltd., that since the present Tariff is based on the HSN, any expression occuring therein must be construed to have the meaning which is (sic.) given in the HSN when there is no indication in the Indian Tariff of a different intention, [1995(03)LCX0070 Eq 1995 (077) ELT 0023 (S.C.)]. Notes in the HSN describing silicon in primary form specify that this includes silicon oils, greases, resins and elastomers. The classification list described one product namely sylpot as 100% silicon. Learned Advocate fairly conceded that this description would make the classification of this product under Chapter 39 but stated that other products or preparation were for specific purpose of insulation and would therefore fall under Chapter 85. He also draws support from Chapter Note 2(N) to Chapter 39 which excludes articles of Section XVI. We have seen the description and composition of other four products mentioned in the classification lists. The description is “silicon oil having no plastic characteristics”. Classification list itself does show that the goods were not compounds but straight oils. Before the Assistant Collector a reference was made to the find- ings of the Chief Chemist of CR CL but to our query, learned Advocate could not show us any such finding of the Chief Chemist. On the basis of the Explanatory Notes and the description of the products the only classification that is attracted 39.10.

4. We have also seen description against Heading No. 84.46. As the learned Collector observed, it is a wide description. We have carefully scrutinized the Notes occuring in the HSN relating to this sub-heading. Notes show that description of the entry namely “Electrical Insulator of any material” is limited to insulators which are used for fixing and supporting of fans of electrical conductors as well as insulating them physically from each other and from earth. This description does not cover the products manufactured by the assessees.

5. We have also carefully considered the plea that these products are known in the trade as insulating materials and have also seen dictionary definition of insulating material quoted before us. We observe that where Tariff description gives guidance as to the classification of the particular product, there is no need to refer either to the dictionary meaning or trade parlance.

6. In the result, appeal succeeds. The order of the Collector is set aside and the order of the Assistant Collector is restored.

Equivalent 1997 (93) ELT 40 (Tribunal)