Dakle Reinforced Plastic (P) Ltd. vs Commissioner of C. Ex., Surat-II>2003(05)LCX0007

2003(05)LCX0007

IN THE CEGAT, NORTHERN BENCH, NEW DELHI

S/Shri V.K. Agrawal, Member (T) and P.G. Chacko, Member (J)

DAKLE REINFORCED PLASTIC (P) LTD.

Versus

COMMISSIONER OF C. EX., SURAT-II

Final Order No. 413/2003-NB(B), dated 6-5-2003 in Appeal No. E/78/2003-B

CASES CITED

Commissioner v. Andhra Steel Corporation — 2002(06)LCX0106 Eq 2002 (145) ELT 0567 (Tribunal) — Distinguished [Paras 2, 4]

Dunlop India Limited v. U.O.I. — 1975(10)LCX0016 Eq 1983 (013) ELT 1566 (S.C.) — Referred ..................................... [Para 3]

Heli Plastics Limited v. Collector — 1992(08)LCX0037 Eq 1993 (063) ELT 0178 (Tribunal) — Referred .......................... [Para 3]

REPRESENTED BY : None, for the Appellant.

Shri Vikas Kumar, SDR, for the Respondent.

[Order per : V.K. Agrawal, Member (T)]. - The issue involved, in this appeal, filed by M/s. Dakle Reinforced Plastics Private Limited is whether the products, namely, FRP Vessels and FRP Reaction Vessels are classifiable under Heading 84.19/84.79 of the Schedule to the Central Excise Tariff Act as claimed by them or under sub-heading No. 3926.90 of the Tariff as confirmed by the Commissioner (Appeals), under the impugned Order.

2. The Appellants under their letter dated 1-5-2003 have requested to dispose of the appeal on the basis of Grounds of Appeal submitted by them. It has been mentioned in the Memo of Appeal by the Appellants that the issue of classification of impugned goods had been decided by the Assistant Commissioner of Central Excise earlier and the said Order had attained finality for the reasons that no appeal was filed by the Department against the said Order; that as such the Deputy Commissioner under the Order-in-Original No. 430/2000, dated 31-11-2000 had no authority to re-classify the goods and come to the different conclusion unless the earlier Order dated 14-9-93 passed by the Assistant Commissioner had been modified or amended; that the findings of the Commissioner (Appeals) in the impugned order that appropriate authorities have the power to re-classify the goods, is not correct. Reliance has been placed on the decision in the case of CCE, Bangalore v. Andhra Steel Corporation - 2002(06)LCX0106 Eq 2002 (145) ELT 0567 (T) = 2002 (052) RLT 0197 (CEGAT). The Appellants have also submitted that the product is a tailor made product designed for specific purpose and is used as pollution control equipment; that accordingly the product is correctly classifiable under Heading No. 8479.19; that similarly FRP Reaction Vessel is used for processing of chemicals and, therefore, cannot be considered as plastic tank and it is correctly classifiable under Heading No. 84.19.

3. Countering the arguments, Shri Vikas Kumar, learned SDR, submitted that the present proceedings were initiated for classifying the product as the Appellants had classified the impugned product under the Heading No. 84.19/84.79; that the product manufactured by the Appellants are simple plastic tanks without there being any part attached to the tanks which can show that they are machines or mechanical appliances or laboratory equipments having individual function so as to classify it under Chapter Heading No. 84.19/84.79; that the process of manufacture as given in the impugned Order clearly shows that the impugned items are manufactured out of synthetic resin with fibre glass; that these products are known as products of fibre glass reinforced plastic in which weight and value of plastic material are substantially higher than the weight and value of fibre glass materials. The learned SDR, further, submitted that it has been held by the Supreme Court in the case of Dunlop India Limited v. Union of India - 1975(10)LCX0016 Eq 1983 (013) ELT 1566, that there is no estoppel in law against a party in tax matters. Reliance has also been placed on the decision in the case of Heli Plastics Limited v. CCE - 1992(08)LCX0037 Eq 1993 (063) ELT 0178 (T), wherein the chemical tanks and reaction vessels have been classified by the Tribunal under sub-heading No. 3926.90 of the Tariff.

4. We have considered the submissions of both the sides. We do not find any substance in the submissions of the Appellants that the Revenue cannot change the classification of the product in subsequent Orders. It is settled law that there is no estoppel against law. Classification of the product has to be determined as per the description of the products given in the various headings/sub-headings of the Schedule to the Central Excise Tariff Act. It cannot be claimed that once a classification has been approved it is good for all the time to come. The decision in the case of Andhra Steel Corporation, relied upon by the Appellants, is not applicable to the present matter as the facts are entirely different. In the said matter a show cause notice was issued for the period from July, 1994 to December, 1994 for recovery of irregular credit availed of by the Appellants. The said show cause notice was withdrawn and another show cause notice was issued for the period from April, 1994 to December, 1994 on the same grounds/materials. In the light of these facts, the Tribunal has held that no new material has been brought on record by the Revenue to prove that the Appellants had not contested the earlier show cause notice on merits and the second notice would be legally barred by the principle of res judicata in the present matter. It is not the case of the Appellants that the classification is being changed for the period, the Assistant Commissioner earlier under Order dated 14-9-93 has classified the product under Chapter 84. The present matter is for the subsequent period. We, therefore, hold that the Revenue is within its right to change the classification of the product. Heading No. 39.26 of the Central Excise Tariff applies to “other articles of plastics and articles of other materials of Heading No. 39.01 to 39.14.” It has not been disputed by the Appellants that the impugned goods are made of plastics. Their main contention is that these are made according to the specific design for specific purpose which are covered by the Heading No. 84.17 and Heading No. 84.79. A perusal of these two headings reveal that the Heading No. 84.19 applies to machines, plant or laboratory equipment for the treatment of the materials by a process involving a change of temperature. No material has been brought on records to show that the impugned products is either machines, plant or laboratory equipment for the treatment of material by a process involving a change of temperature. It is simply FRP vessels. Similarly Heading No. 84.79 covers machines and mechanical appliances having individual functions, not specific or included elsewhere in Chapter 84. Again there is no material on record to show that these FRP reaction vessels are machines or mechanical appliances having individual function. As the impugned products are made of plastic, they have been correctly classified under sub-heading No. 3926.90 of the Central Excise Tariff. Accordingly, we reject the Appeal.

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Equivalent 2003 (156) ELT 0293 (Tri. - Del.)