1986(04)LCX0028

BEFORE THE CEGAT, SPECIAL BENCH ‘B-2’, NEW DELHI

Shri S.D. Jha, Vice-President (J), Smt. S. Duggal, Member (T) and Shri H.R. Syiem, Member (T)

BAKELITE HYLAM LTD. BOMBAY AND ANOTHER

Versus

COLLECTOR OF CUSTOMS, BOMBAY AND ANOTHER

Orders Nos. 269 to 274/86-B2, dated 21-4-1986

Advocated By : Shri J.R. Gagrat and Miss Sushma Manchanda, Advocates for M/s. Bakelite Hylam Ltd.

: Shri K.S. Cooper, Sr. Advocate, and Shri A. N. Haksar and Mrs. P.S. Shroff, Advocates, for M/s. Wood Polymer Ltd.

: Shri S.D. Nankani, Advocate, for M/s. Weldekar Laminates Pvt. Ltd.

: Shri S.C. Rohatgi, JDR, for the Department.

[Order per; H.R. Syiem, Member (T)]. - The material in dispute in all these appeals is an article that the department calls a steel plate but which the importers call a mould. The department holds that these steel sheets would be assessable under Chapter 73 as plates of iron or steel, hot-rolled, or cold-rolled, whereas the assessees argued that Chapter 84 is the correct heading for it, because this is a mould and is a part of machinery. The goods that were imported were described variously by the different importers as stainless steel sheets or as flat moulds. At other times, they were described in invoices as stainless steel press plates; they have also been described simply as press plates. However, there is no need to record all the different names which these articles have been given, because one fact is uncontradicted and this is that the goods are flat rectangular pieces of stainless steel whose technical description can be given thus: 2.5 mm thickness, 3110 x 1270 mm length and width, made of martensitic steel, hardness 40-45 Rockwell C and used in forming or shaping or pressing plastic laminates and laminated sheets. The ground of dissension between the Custom House and the importers is the fact that the department says that the goods are nothing but stainless steel sheets/plates, while the importers say that they are not stainless sheets and plates but are forming/shaping moulds which give shape and form to the plastic laminates and, therefore, should be classed as moulds. The different parties i.e. the importers and the Custom House, were heard one after another and they presented long and elaborate arguments.

2. The counsel for M/s. Bakelite Hylam, Hyderabad [appeal Nos. CD(SB) (T)A No. 140/79-B2 and CD(SB)(T)A.No. 151/79-B2] began the arguments and stated that reference to sections XV and XVI of the Customs Tariff would disprove the contention of the department. He drew attention to Chapter Note 1(n) of Chapter 73 which reads:

sheets and plates (Heading No. 73.13): rolled products [other than coils for re-rolling as defined in paragraph (k) above] of any thickness and, if in rectangles, of a width exceeding 500 millimetres:

Heading No.73.13 is to be taken to apply, inter alia, to sheets or plates which have been cut to non-rectangular shape, perforated, corrugated, channelled, ribbed, polished or coated provided that they do not thereby assume the character of articles or of products falling within other headings over.

Heading 73.13 covers sheets and plates, or iron or steel, hot-rolled or cold-rolled; it is easy to see from the application to which these articles are put that they are not sheets or plates of steel. He then referred to the 1977 Customs Tariff Chapter heading 73.15(2). Chapter 73 cannot under any circumstances embrace or take into its cover these goods. This Chapter will accept only iron and steel articles which are in a crude stage of production and have not taken the form and quality of finished machinery parts like these ones. The articles they have imported are highly specialised finished articles made of steel which are ready for fitment in machinery to work in conjunction with and as integral parts of, a highly sophisticated machinery.

3. He next turned his attention to Section XVI of the Customs Tariff. This section covers “Machinery and mechanical appliances; electrical equipments; parts thereof.” Note 5 under this section provides that “for the purpose of these notes, machine” means any machine, apparatus or appliance of a kind falling within Section XVI. This section deals with machinery, and their goods being machinery parts would, by reason of Section Note 2 under Section XVI fall under Chapter 84 in this section. Furthermore, this chapter has two sub-headings which are ideally suited to hold these goods and are clearly designed to take into their coverage goods like these. Heading 84.59 covers “Machines and mechanical appliances, having individual functions, not falling within any other heading of this Chapter.”

4. Heading 84.60 is even more specific. It covers

moulding boxes for metal foundry; moulds of a type used for metal (other than ingot moulds), for metal carbides, for glass, for mineral materials (for example, ceramic pastes, concrete or cement) or for rubber or artificial plastic materials.

The learned counsel asked that the words “artificial plastic materials” be noted.

5. The department says that this is not a mould, but a look at heading 84.34 will show that even a plate can be a machinery or an apparatus, as its heading covers printing plates and plate for printing purposes. Heading 84.59 can cover these goods because their moulds though flat in surface have definite individual functions since they help in shaping the laminates by pressure. A mould is an apparatus or an appliance for the purpose of Note 5 Section XVI: there is no basis for the department’s argument that a .flat surface cannot be a mould. There are plenty of evidences and supports for saying that even a plate can be a mould if it functions and works and has the same application as a mould. Chapter 84 which covers machinery and machinery parts itself refers to plates as parts of machines, for example, in heading 84.34.

6. The learned counsel referred to the words in rule 1 of the Rules for the interpretation of the Customs tariff. He said the words “classification shall be determined according to the terms of the headings and in relative section of Chapter notes and, provided such headings or notes do not otherwise require, according to the provisions hereinafter contained. The classification of goods within a heading shall be determined by applying as between sub-headings the like rules as are applicable between headings” have a direct relevance to his point of view.

7.The counsel also referred to interpretation to rule 2(a) and read it out with rule 3. In interpretation in rule 4 he found that when there is doubt as to the nature of the goods, as in this case, one can at least ask what the goods are most akin to. The answer is only one and, that is, they are most akin to a mould, because they mould the plastic laminate in order to form them into the shape that they finally assume.

8. They were issued an import licence for capital goods and not for raw material. This shows that the goods are capital machinery items and not just sheets for working.

9. The order of the Assistant Collector says that the goods are not in finished form. This is totally incorrect. The press moulds that they have imported are ready for fitment and will be put to work without anything else being done to them. He also said that they cannot remain sheets and plates and that they have assumed the character of articles or products falling within other heading. The learned counsel next read the order in appeal to show that here also the adjudicating authority had misunderstood the character utility and application of the press mould.

10. He stated that the cost of the plate, regardless of what the Appellate Collector (Appeals) says, was very relevant. It is unthinkable that a person who wants to buy a stainless steel sheet will buy these plates instead. He would refuse them not only because their cost would be too high and uneconomical for the uses to which stainless steel sheets and plates can be put but because these stainless sheets and plates cannot be cut and formed and used as stainless steel sheets as they are too hard, far harder than ordinary steel plates and sheets. They cannot be bought ‘in a stainless steel sheet dealer’s shop. Fault has been found by the department because they do not have special shape, but, wondered the learned counsel, what special shape a flat surface can have. It is a special alloy steel plate, special because it has special utility and work to perform which no steel sheet or plate will ever be called upon to perform. The Collector (Appeals) himself accepts that it is a sheet that has acquired special characteristics. He said that the Collector was wrong to hold that the flat moulds imported by them were only sheets and plates of special alloy steel classifiable under heading 73.50(2). He failed to appreciate that the mechanical properties of the flat moulds were different from those of rolled and annealed sheets of ordinary stainless steel and of rolled annealed sheets of steel type AISI 410. The tensile strength of the flat moulds is in the region of 1,70,000 pounds per square inch, whereas other stainless steels do not have that strength above 1,10,000. The elongation of these flat moulds is nil, whereas other types of stainless steel sheets have certain values of elongation. The hardness number of these articles is Rockwell 40 to 45 C, whereas flat ordinary sheets even of the special variety do not have hardness number of more than Rockwell 20C. These so-called sheets were useful for nothing else but the purpose for which they were imported as can be seen from a certificate dated 21st February, 1978 given by ITADAL saying that the steel is of no use for the manufacture of kitchenware, hospital-ware and chemical equipments. They have certified that this material can be used only as mould in the manufacture of laminated sheets. They have also certified that the material is costlier than stainless steel and furthermore this material cannot be processed for any other products since it is too hard and is not economical as a raw material for’the fabrication of equipment.

11. The learned counsel referred to a letter No.EP/CH/22(15)/77/845 dated 13-5-1977 written by the Development Officer in the Directorate General of Technical Development to the Deputy Chief Controller of Imports and Exports, Hyderabad saying that he had no objection to the import of the goods from the indigenous angle; he refers to the goods as flat moulds specially hardened etc. etc. In another letter No.EP/CH/22(15)/78/632 dated 3-4-1978 the Development Officer wrote to M/s. Bakelite Hylam Ltd. to say that they had advised the Collector of Customs, Bombay to charge import duty on flat moulds of stainless steel as capital goods. In a certificate issued by SIEMPELKAMP, M/s. Bakelite Hylam are shown as having been supplied hydraulic presses for their laminate industry. The certifier says that the alloy steel moulds formed an integral part of their machinery and without the steel moulds the presses cannot work. The function of the moulds is to give finish and shape to the laminates and to get particular finishes, particular moulds must be used. It may be noted, said the counsel, that these suppliers call these plates steel moulds. SIEMPELKAMP are one of the largest suppliers of hydraulic presses in the world for the laminate industry and they have supplied this machinery to 4 or 5 buyers in India.

12. Even if the articles look like steel sheets, in view of the chemical and physical treatment that they have received, they should be regarded only as moulds. The counsel repeated that no steel sheet or plate receives the treatment that these sheets and plate have received and the department has not denied that these flat moulds have received special treatment not received by plates and sheets meant to be used as raw material for the manufacture of other steel articles and items.

13. The counsel reported that their first claim for assessment is under heading 84.60; in the alternative 84.59 is also applicable. He pointed out that heading 84.80 of the CCCN covers all kinds of moulds. A reference was made to a decision of the Income-Tax Appellate Tribunal, Hyderabad dated 28th February, 1977, in which the Tribunal treated these stainless steel sheets as moulds and so did the Appellate Assistant Commissioner according to the findings of the Tribunal. Rockwell hardner is not used on ordinary stainless steel plates. The learned counsel emphasised that the entire argument of the department was completely baseless.

14. The learned counsel for M/s. Wood Polymer then began his arguments. [Appeal No. 253/84-B2 by Wood Polymer and appeal No. 1587(A)/81-B2, by the collector of Customs, Bombay against M/s. Wood Polymer], The learned counsel for M/s. Wood Polymer said that moulds fall under heading 84.60 and what is true of a mould is true also in a broad sense of their steel plates. These so-called steel plates are not steel plates in the sense people understand steel plates; they have no use as steel plates and have not been manufactured so that they can play the role of steel plates. Their design, manufacture and several other properties are meant to give them characteristics that no steel plate is given or needs to have. The special treatment they have received fits them for a very special job: these flat plates have the special job of moulding plastic laminated sheets. In short, they are moulds. They are no longer steel plates but are moulds and must, therefore, fall under 84.60. He referred to the bills of entry and pointed out that the description in the declaration to the Custom House was

prime quality stainless steel flat moulds finish No. VIII(GLOSSY) matt finish No. 3; and

Stainless steel sheets of length 2770 mm x 1245 mm x 2.5 mm Thick hard chrome plated to No.8 finish blue super quality to ISI 410 Rockwell hardness 45-48

they are shown to have been imported from Austria and West Germany. Invoices from VEREINGTE EDEL STAHLWERKE AG and CAP show the goods to be stainless steel flat moulds with a matt finish and CAP stainless steel sheets of Rockwell hardness 45-48.

15. He described how the flat moulds work in forming laminated plastic sheets. The kraft papers which are placed in layers, are shapeless at the beginning; shape is given to them by the flat moulds, a shape the sheets did not have before the moulding. The flat mould shapes the sheets and gives them their final shape. This is what a flat mould does; because the final product itself is flat, therefore, the mould has to be flat.

16. In letter No. Jt.CCINE/BOM/37th CL. Meeting/83-84/EPP-I dated 28-2-1984, the Joint Chief Controller of Imports and Exports, Bombay wrote to M/s. Wood Polymer Ltd. to tell them that stainless steel press moulds used in the hydraulic press could be imported on the OGL vide serial No. 6 of appendix 10 of April/March, 1984 policy. Serial No. 6 of appendix 10 of the ITC Policy book was for moulds. If these stainless steel press moulds can be moulds for the I.T.C. authorities how can they not be moulds for customs?

17. The above letter was in reply to their letter No. WPL/JCCI&E/84 dated 23-1-1984 in which they sought clarification of the matter regarding stainless steel press moulds - flat moulds used in their hydraulic press. Their letter gave full and complete details of the nature of moulds they wanted to import and the use to which they are put, their sizes, and other technical data. Heading 73.15 of the Customs tariff refers to plates which are cut into length or which can otherwise be manipulated or fabricated into other articles. Their flat steel moulds cannot be cut or fabricated into other steel articles nor are they meant for such cutting or working. Their cost alone would prohibit their use as raw material for the manufacture of other steel articles. The point to be remembered is that these stainless steel flat moulds are understood by the Chief Controller of Imports as moulds. They were imported as capital goods and the Director General of Technical Development certified that the stainless steel sheets which they wanted to import would be categorised as capital goods and not as raw material. Furthermore, the latter also asked them to approach the customs authorities to explain to them that the polished stainless steel sheets were used as flat moulds. The Technical Officer would not have written such a letter unless that office understood the stainless steel sheets to be moulds i.e. flat moulds.

18. The counsel said that if heading 84.60 cannot be applied, they should alternatively be given heading 84.59. These are mechanical appliances and have individual functions and are designed for the production of a commodity by treating a material similar to metal and wood and they do not fall within any other heading of this Chapter. Thus, they .are qualified for 84.59. But it is only an alternative assessment prayed for. The correct assessment and specific heading is heading 84.60 which covers -

“moulds of a type used for ........ artificial plastic materials.”

These flat moulds are moulds and are used as moulds for artificial plastic materials to produce the plastic sheets. The plastic sheets are formed and given their final shapes and decoration by means of the pressure applied to them by the press plate/moulds.

19. According to the Shorter Oxford English Dictionary, a mould is a pattern by which something is shaped. There may be other meanings given by the dictionary to a mould, but this is one of them and is a valid description. In this description of mould if a pattern is imparted by the mould to the moulded subject, the material that imparts the pattern must be termed a mould even if it is flat. To impart a pattern it is not necessary for the mould to be hollow; it can as well be flat and in order to give a pattern, a flat surface can easily mould as well as a hollow recess; the flat mould is the matrix which forms the plastic sheet by force of pressure. The learned counsel said that he was unable to understand why moulding should always be by pouring the material into a hollow mould. He was unable to understand why it is not a mould if force and compression are applied to get the desired article or product. The Collector found support in the Modern Plastic Encyclopaedia because it does not call steel plates moulds, but the counsel saw no force in this, because a book does not call the article moulds, it does not mean they are not moulds.

20. These steel plates are to work in conjunction with the machine, and are appliances and integral parts of the machine. The machine cannot do its work i.e. produce plastic sheets, if these steel plate moulds are not fitted and in the required position. Hence, they are appliances which are parts of a machine and must, therefore, rank as machine.

21. The counsel referred to paragraph 14 of the Collector’s order which reads:-

“Schedule I to Imports (Control) Order, 1985 is allied to CCCN and the First Schedule to the Customs Tariff act, 1975. In fact, the definitions, terminology, etc., used in the First Schedule of the CTA apply to the classification under Schedule I. It is, therefore, clear that these stainless sheets are not ”moulds" and cannot, therefore, be considered as spares of machinery. They are, therefore, not covered by Entry 10(4) of Appendix 10. Since stainless steel sheets are included in Appendix 8, they cannot be imported under OGL as entry 10(2) would apply to iron and steel items other than those included in appendices 4,6,7 and 8. The same is reproduced in the Import Trade Control Order No.3/83 with regard to import of spares and components. Since no licence has been produced for the clearance of the goods, they are liable to confiscation under Section 111 read with Section 3(2) of the Import and Control Act, 1947."

Strangely enough, the authority who is entitled to issue the import licences said that no licence was necessary, but the customs said otherwise. He referred to the letter dated 28-2-1984 from the Joint Chief Controller of Imports and Exports to that effect. He read from a book PLASTIC PRODUCT AND DESIGN by Ronald Beck and quoted a few pages of the book to support his contention that pressing is also a process of moulding. It can be seen that larger hydraulic presses are used as moulding presses for the formation of plastic sheets and the sheets are understood to have been moulded during the manufacture. These press moulds cannot be used for any other purpose in the way raw material steel sheets and plates can be used. He read the judgment of the majority in the Calico case 1983 ECR 329 and submitted that the decision was mistaken. He said the decision in minority was correct. The department points to the fact that the party called it a plate at one time; but whether one calls it a plate or a mould of by any other name, it can make no difference. He read order No.S/49-1881/ 80R dated 15-10-1980 passed by the Appellate Collector of Customs, Bombay and pointed to the fact that the Collector took note that the goods had been variously described as flat moulds, press plates, caul plates etc. and ‘said that this was his argument. The Appellate Collector had correctly drawn attention to the quality that these sheets had. He observed that special characteristic is nothing but special quality. It is this special quality, argued the counsel, that makes the flat mould a mould and he would like to repeat the Appellate Collector’s reasonings that a flat mould is not an unintelligible idea and that moulding is not limited to liquids or molten materials to be poured by gravity or pushed by injection,

22. The counsel again read from Ronald Beck’s book pages 334 and 335 Table 11-2. He said that on a reading of this authority, it would become clear that pressure forming is also a moulding and’ that the quality of moulding is present at all time when, the plastic sheets are pressed in the press plates to be formed. This process requires moulding even when it is pressed by flat plates and cannot be differentiated from other kinds of moulding. In the book METALS FOR PLASTICS PROCESSING it can be read that moulding gives the same characteristic shape of the mould metal to the moulded article. The plastic sheets acquire the shape and characteristic of the flat pressed plate which are the moulds that form them. DEARLE’S PLASTIC MOULDING TECHNIQUE talks of plastic articles being moulded slowly in hydraulic presses."

23. He referred to Section XV Note 1(f) and Chapter Note 1(n) of chapter 73 of the Customs tariff. There is nothing in common between the sheets described here and their press plates. In any case, said the counsel, if their goods are moulds, it will make no difference if it is a plate, and there can be no doubting that it is a mould which has been given a special quality, a polish, strength and thickness which would not be given to just a sheet or a plate.

24. The letter dated 30th October, 1979 written by Mr. J.H. Hoguet, Director, Customs Co-operation Council to the Director, Ministry of Finance, Government of India, in which he stated that in his opinion and in the light of the information and samples provided, the plates did not have any feature that would warrant their being classified in a heading other than heading 73.15 should not be relied upon. The counsel argued that this was the writer’s personal opinion. The JCCI clarified in his letter dated 28.2.1984, that the stainless press moulds used in the hydraulic press could be imported under OGL serial No. 6 of appendix 10 of April/March, 1984 policy.

25. On behalf of Weldeker, the learned counsel, Mr. Nankani read the show cause notice dated 26.9.1981, issued by the Government of India in terms of Section 131(3) of the Customs Act, 1962, seeking to set aside the order of the Appellate Collector dated 15.10.1980 in respect of flat moulds imported under bill of entry cash No. 316 dated 2.4.1979 and bill of entry No. 2623 dated 16.3.1979 through the part of Bombay. The learned counsel pointed to the language used by the Government in its notice. It says that the Mineral Metals Trading Corporation on the account of M/s. Weldeker Laminate “imported stainless steel sheets of different sizes described variously as flat mould, press plates, etc. as per annexure.” They have imported press plates or press moulds or flat moulds, but they have not imported any etc. The use of the word “etc.” is not permissible, because it seeks to enlarge the terminology and phrase beyond what is strictly to be found in the records and proceedings and is prejudicial to the importers. He drew attention to the bill of entry which describes the goods as stainless steel press sheets mirror finish. He also pointed out to the invoice issued by HANDELSGESELLSCHFT FOR INDUSTRIE-UND HOTTENPRODUKETE M.B.H., AUSTRIA which describes the goods as stainless steel press plates. This invoice shows the goods to be 45-50 Rockwell C hardness with narrow tolerances, suitable for the manufacture of plastic laminates. In their letter dated 13.9.1979, addressed by their clearing agents to the Asstt. Collector regarding refund of duty in bill of entry No. 316 dated 2.4.1979, they made two alternative claims. They claimed that the classification should be under heading 84.59(1) of the Customs tariff. They also made a claim in their letter for assessment under heading 84.60.

26. Heading 73 of the Customs Tariff is only for sheets and plates, whereas the Government of India’s notice dated 26.9.1981 refers to their goods as flat mould/press plates. In paragraph 3, the notice also refers to the goods as flat moulds. In this connection, he referred to the minority decision in the Calico judgment, 1983 ECR 329-D in which this tribunal held that the sheets of sizes made so as to fit into a hydraulic press as component parts of the machinery and have been given special quality therefor should be assessable as parts for machinery under 72(3) of the old Indian Customs Tariff.

27. There can be no doubt that these goods have assumed the character of an article under a specific heading and have become part of that article or machinery in which they are going to be fitted and in which they are going to work. These goods may look like sheets but their prices are far higher than prices of ordinary steel plates or sheets.

28. The learned counsel read the importers’ reply dated 3-7-1982 given to the show cause notice. He pointed out that the Government’s notice does not challenge the Appellate Collector’s finding. The findings of the Tribunal must be only in the context of the Appellate Collector’s findings and orders. For this, the counsel quoted IAR 1977 S.C. 2050. The Tribunal’s decision must be given only on the basis of the review notice. It can annul or modify the Appellate Collector’s order: no other order is permissible. The Mill’s certificate was read by the learned counsel in which the mill confirms that every press plate had been thoroughly inspected and had passed the final control in respect of surface finish, tolerance on length/width/ thickness and parallelity. All the press plates were up to standard mirror polished, surface and tolerance. He stated that the opinion given by the CCCN Director was not acceptable, and that this person was not competent to give this’ opinion; only the Nomenclature Committee was empowered to give such clarification. He also referred to the CCCN published “Classification Opinions” and said that this publication does not carry this classification. He referred to 1984 ELT 564. He pointed out to the technical data given by CAP and said that it would be seen from this data that the goods were special quality press plates or moulds. He read a paper prepared by Batliboi & Company Private Ltd. on press plates made of special steel. The mechanical and physical properties mentioned in this paper show that the press mould/press plates are designed not to serve as stainless steel sheets and plates which are always raw materials for production of other steel goods, but are specially designed, made and fabricated parts of machinery to be fitted in machinery and to work with such machinery in the production of industrial goods.

29. There is a difference between the details of the goods in the Calico judgment and in these goods, because there is a difference in headings and phraseology of the tariff items; the Calico judgment was given in the background of the old tariff, while these goods are to be governed by the new Customs tariff that came into operation in August, 1976.

30. On behalf of the department, the learned counsel Mr. Rohtagi opened his address by saying that these goods are not moulds but only press plates. M/s. Bakelite Hylam spoke of the goods as press plates and declared them so in their communication dated 24th March, 1977 to the Director General of Technology Development, although they do say they were to be used as flat moulds for the manufacture of phenol formaldehyde laminates. It was in this letter dated 24th March, 1977 that they spoke of flat moulds for the first time. It was only when they found that they stood to gain by describing them as moulds that they began to call them as moulds. The suppliers, CAP, referred to them as press plates, although, it seems, they changed later to suit the demands of their customers. This is not surprising because, after all, the customer decides in a matter like this what the goods should be called and it costs the seller nothing to fall in line with the description demanded by the customer. As for the decision of the Income-tax Tribunal in which the sheets were called flat moulds, he said that this decision was not relevant. For one thing, the Income-tax Tribunal is not an authority for these purposes.

31. He said that according to KENT’s MECHANICAL ENGINEERS’ HANDBOOK, a mould is a three dimensional shaper. It must give a shape to a shapeless mass and should form it to a required contour. The importers have referred to the fact that printing plates can fall under heading 84.34; this cannot support their case, because these plates are assessed under Chapter 84 by virtue of their specific inclusion. If any article is specifically included in a chapter or heading, then regardless of any reasons to the contrary that might appear in the imported material itself, assessment must be made under the heading under which that article or material is placed. This is the primary rule of assessment and, therefore, the assessment of printing plates in 84 is not a reason for assessing these flat plates under the same heading. Unlike the CCCN which specifically provides for accessories, the Indian Customs tariff, 1975 will not cover accessories except when so specifically included. He mentioned that this is not a part of the machine; this is proved by the fact that the pack in which the sheets/laminates are stacked and placed before they are put in the hydraulic press for pressing, are assembled outside the hydraulic press. This can be gathered from a perusal of PLASTIC COATING AND LAMINATION by R.K. Gupta page 221.

32. German Customs are said to have opined to the effect that these are moulds and are to be regarded as such for the purpose of assessment under heading 84.59. He referred to the ITC book and the D.G.T.D.’s letter to Wood Polymer and pointed out that whatever one may say about the correspondence exchanged by M/s. Wood Polymer with the ITC authorities, the fact is that the importation is banned and unauthorised. The party had said that any clarification given by the C.C.I.& E. must be binding on the customs, but the department cannot accept this. It is the Custom House responsibility to satisfy itself that the importation was valid under the licence and the relvant policy; after all, it is these authorities which will have to decide whether an importation is to be regarded as unauthorised or not. Letters and correspondences exchanged with the C.C.I.& E. and his subordinate offices cannot control the decision to be arrived at by the Custom House’s. This item is a canalised item and is not eligible for import under OGL. He reiterated that the C.C.I. & E.’s clarification is not binding if it is contrary to policy. When M/s. Weldekor wrote a letter dated 13th August, 1977 to the Iron & Steel Controller, they said clearly that they used stainless steel plates in their heavy hydraulic press for manufacture of laminated sheets and that the stainless steel plates were essential for manufacturing the end product. He drew attention to a paper VEREINIGTE EDELSTAHL WERKE AKTIENGESELLSCHAFT speaking of these moulds as press plates made of special steel. At this point, he quoted 1985 ECR 1465 Indian Aluminium in which the Supreme Court ruled that properzi rods were wire rods. There has been no technological process to justify changing the name from steel plates or press plates to press moulds. M/s. Wood Polymer changed the description to mould in order to claim lower rate of duty.

33. All the imports have been described as stainless steel plates, plates/ sheets and were imported in the period 1977 to 1980. In some cases, what used to be described as stainless steel sheets became moulds for reasons that are obvious. Even quotations were given for press plates; in 1978 the goods were invoiced as plates. The learned counsel described the letter No.EP/CH/22(15)/77/845 dated 13-5-1977 from the development Officer to the Deputy Chief Controller of Imports & Exports, Hyderabad, as a mechanical letter which was written without application of mind. It said that the office had no objection to the import of the equipment, tools and jigs, namely, flat mould specially hardened. Even when they speak of moulds, they speak of flat moulds as can be seen from a letter written by CAP on 22nd August, 1977 to M/s. Bakelite Hylam. Now the importers claim that the goods are moulds. In all the technical papers and literature given by the manufacturers/suppliers all the goods are shown as being flat. The supplier was the same for M/s. Weldekor and M/s. Wood Polymer, the patent number is also the same.

34. The letter to the Customs from the Brussels nomenclature directorate/ director was a correct interpretation of the tariff headings. It is not the personal opinion of the director. Being a letter, it was in the form of a demi official letter. The directorate committee gave reply only after making enquiries with the manufacturers. A demi official letter is always in the first person.

35. The learned counsel read the rule of interpretation 1 and Note 1(n) of Chapter 73. The chapter note provides that even if a sheet or plate has been polished, coated etc., it will still be assessable in Chapter 73 if it has not taken the character or disposition of an article of another chapter. These sheet plates cannot be said to have taken the character or disposition of an article so as to no longer qualify as sheets or plates.

36. Chapter 84 does indeed cover printing plates but these would fall in Chapter 73 but for their specific inclusion in Chapter 84, the tariff wordings, chapter notes, and the rule of interpretation all work to place printing plates in Chapter 84. The counsel read Section Note 5 of Section XVI -he urged that these goods have no mechanical application. Heading 84.59 can cover items only if they are mechanical appliance.

37. Reverting back to the rules of interpretation, the learned counsel said rule 2(b) would apply only if rule 1 did not fulfil its function. Rule 1, according to him provided the guideline. Rule 3(a) requires assessment under the most specific description, and there can be no doubt that steel sheet/plate was the most specific description. Rule 3(b) enjoins assessment/ classification under the heading that approximates most nearly the essential character that the goods possess and the essential character of these plates are steel plates or sheets. And to meet rule 4, the goods must be called steel plates as they are most akin to them.

38. It is not correct to say that no one can go beyond the Appellate Collector’s order. The very purpose of a review in the review cases was to pronounce the Appellate Collector’s order a nullity because it is incorrect. The doctrine of appropriation and reprobation will act to supply clerical deficiencies such as the omission to send a notice for review to M/s. Bakelite Hylam. The Notice places it beyond any doubt that Bakelite Hylam cases were being reviewed by listing in the annexure the orders relating to them.

39. Bakelite Hylam have claimed notification 89/77-Cus. but said nothing in the refund application about countervailing duty; however, M/s. Weldekor have claimed countervailing duty. He ended by urging a finding in favour of the department.

40. The two sides have quoted a large number of books, authorities, judgments in support of their respective contentions. The following court judgments have been" quoted, but it is not easy to see the relevance that they have to this dispute, because they do not rule how . a flat press late of the kind imported by the importers should be assessed. One case quoted is J.K. Steel v. Union of India 1978 ELT J355 in which the Supreme Court ruled, that the Court must interpret the statute as it stands and in case of doubt, the decision should go in favour of the tax-payer. This holds true if there is a doubt in the assessment of these goods which is not perhaps borne out. There may have perhaps been a dispute before the lower authorities; but this cannot amount to a doubt in their minds in coming to a decision. The second judgment is the case of Orient Paper Mills v. Union of India, 1978 ELT J 382. In this famous judgment, the Supreme Court laid down that assessing authorities which exercise quasi-judicial functions should act in a judicial and independent manner and not allow their judgements to be controlled or influenced by a superior authority. Another judgment quoted is Nivedita Chemicals v. Collector of Customs, Bombay, 1985 (20) ELT 382 when this Tribunal gave a decision on glass reaction vessels imported for use in research and development. The Tribunal decided that the glass reaction vessels meant for use as reaction vessels should be assessable as laboratory glassware under heading 70.17/18 of the Customs Tariff, 1975. What we have before us are not glass reaction vessels but steel press plates which the importers claim are moulds or machine parts. That decision has no guidance to offer us. The only decision that has a direct bearing is the decision 1983 ECR 329-D in which the Tribunal by a majority of two members decided that hydraulic press plates of stainless steel were classifiable as stainless steel sheets; one member, dissenting, held them to be component parts of machinery.

41. This is a problem that will have to be solved on the basis of the technology and the application of the goods the use to which they are put and the nature and the character etc. The importers have produced literature and papers, pamphlets etc. from manufacturers in which the flat press plates have been called moulds. An illustrative catalogue printed on behalf of CAP describe them as specially hardened moulds and CAP moulds for the rubber and plastic industry. There is no need at the moment to join issue with this description for reasons that will be apparent as we proceed. We will, however, quote other printed books that have a direct relevance on a decision whether these press plates are to be called moulds. It is necessary to understand the nature of the goods in the production of which these plates, or moulds as the importers call them, are used.

42. The method of production of the plastic laminates is that layers of kraft paper impregnated with thermosetting resin are bonded together into thicker sheets/plates called plastic plates or sheets under pressure which may be as high as 1200 to 1400 psi and under temperature ranging 150 to 250°C. During the process, the sheets to be bonded are held between two press plates and under the pressure and the heat, the resin flows, causing the different individual impregnated kraft papers to bind together permanently into thick industrial sheets. The sheets are held in place by the press plates till they are fully cured and the resin is permanently set in an irreversible process. This process of laminating sheets together to form thicker sheets is used to produce both decorative plastic laminates as well as sheets for industrial and other utility purposes. Where decoration is the aim, a suitable decorative tissue is bonded to the surface during the process and the finished laminated sheet comes with decorative designs and patterns on it. According to the importers, this action of the press plates is synonymous with the action of a mould, because it is under their influence when the impregnated sheets are pressed between them, that the thicker sheet, whether decorative or utilitarious, is moulded, formed and produced. They play the same role that a conventional mould plays, because without the mould, the finished part cannot take its final form; and without these press plate moulds the finished plastic sheet cannot take the shape it does. The forming and shaping is possible only through the direct use of the press plates.

43. To be sure, there is some material that would appear to support the argument that the laminating process is a moulding process. At page 58 Chapter 3 of AN INTRODUCTION TO PLASTICS (Lionel K. Arnold) runs this passage under LAMINATING

“It has been customary to speak of laminates moulded at less than 100 psi as low-pressure laminates as opposed to high-pressure laminates molded at higher pressures.”

It seems that the book recognises that lamination process is a process of molding. In PLASTIC MOLDING TECHNIQUE (by D.A. Dearle) there is this sentence at page 93

“The process of molding laminated phenolic sheets, rods, and tubes is a study in itself, differing from compound molding both in technique and in the types of presses used. In our study of the phenolics we learned that the molding compound consisted chiefly of a binder and a filler, the binder being a phenolic resin and the filler consisting of wood flour or some other such product. The same is true of the laminates, except that the filler is either a paper or cloth, not a flour.”

At page 94 runs this line,

“The sheets are then placed between highly polished chrome-plated dies and molded slowly in large hydraulic presses.”

44. PLASTIC PRODUCT DESIGN (Ronald D. Beck) records at page 333,

“The term ‘high-pressure laminate’ is normally confined to those laminates molded and cured in their final form at pressures no lower than 1000 psi and more commonly in the range of 1200 to 2000 psi. If the pressure is under 1000 psi, the product is called low pressure laminates.”

A picture is also given at page 335 (figure 11-21) of a large hydraulic, steam-heated, plate molding press.

45. The ENCYCLOPAEDIA OF PLASTICS EQUIPMENT (Herbert R. Simonds) records at page 435 that

“The molding pressures are being increased to reduce the curing time.”

These and several others can be understood to mean that technologically the laminated sheets of plastic are molded when they are formed into sheets between two press plates to take the permanent shape of sheets and that in this way the plates are not different from moulds as normally understood. The books do refer to the laminating process as molding, and to the products as moulded laminates. There would be, argue the importers, no serious technological objection to the classification of the press plates as moulds or as parts of the hydraulic machine, because they do the work that moulds do and they give the required shape to the sheets and form thicker stiffer sheets/plates from the thinner inpregnated kraft paper material. It is not necessary that shapes and contours should be formed in moulding. Not all shapes are contours or profiles or other products conventionally produced in moulds. A product can equally be a flat sheet like plastic laminated sheet and still be produced by molding, because, after all, a mould fulfils its function when the material to be formed is placed in the mould and is pressed so that it takes the shape of the mould as may be desired, permanently. Since flat sheets and plates are required, the moulds cannot very well be contours or hollow or give shapes other than flat shapes to the finished product. It cannot, however, mean that there is no molding because the finished product has a flat surface and is, so to speak, shapeless. The shape is its flat surface, a required character in the product just like a contour product may be required in another application. It is all a question what shape the product to be produced is required to have.

46. It is not possible to accept the argument of the importers that the goods are moulds or that they form part of the machine. When we speak of a mould, we understand it to be a hollow or a cavity or a recess into which the subject to be formed is poured or injected. Final shape is obtained from the mould, frequently with the help of pressure and heat. Quite frequently too, there are two counter-parts of a mould, the male and the female, the male taking the function of pressing the liquid or melt in the female cavity so that it flows, forms and takes the desired shape or contour. Thus, one reads of casting metal in the mould in which the molten metal is poured and in which it is allowed to cool, taking the shape of the mould permanently. We also hear of injection or pressure molding in which the material to be shaped is forced under pressure to fill the cavity or mould so that it forms into the desired shape. The books produced during the hearing tend to support the argument of the department that a flat plate of the kind imported cannot be classed a mould. When the books speak of molded laminates or of molding laminates, they speak only of the process of forming the sheets. For example, when PLASTIC PRODUCT DESIGN (Ronald D. Beck) speaks of molding the laminates it speaks of how the laminates are molded and cured in the final form at high pressure. MANUFACTURING PROCESSES by Myron L. Begeman and B.H. Amstead carries a paragraph thus

“Plastics are cast when the number of parts desired is not sufficient to justify the making of expensive dies. Frequently, open moulds of lead are formed by dipping a steel mandrel of special shape into molten lead and stripping the shell from the sides of the mandrel after it solidifies.”

This is a true molding because we have here a method in which the product is cast. A paragraph under laminated plastics in MANUFACTURING PROCESSES (Begeman and Amstead) says at page 689

“Laminated plastics consist of sheets of paper, fabric, asbestos, wood, or similar materials which are first impregnated or coated with resin and then combined under heat and pressure to form commercial materials. These materials, which are hard, strong, impact-resisting, and unaffected by heat or water have desirable properties for numerous electrical applications. The final product may consist of either a few sheets or over a hundred, depending on the required thickness and properties. Although most laminated stock is made in sheet form, rods and tubes as well as special shapes, are available. The material has good machining characteristics which permit its fabrication into gears, handles, bushings, furniture, and many other articles.

In manufacturing laminated products, the resinoid material is dissolved by a solvent to convert it into a liquid varnish. Rolls of paper or fabric are then passed through a bath for impregnation, as shown in Figure 25.22. This is a continuous operation and, as the sheet leaves the resinoid bath, it goes through a drier which evaporates the solvent, leaving a fairly stiff sheet impregnated with the plastic material. To facilitate lamination, the sheets are then cut into convenient sizes and stacked together in numbers sufficient to make up the thickness of the final sheet. Each group is assembled between polished metal plates at top and bottom and is then stacked in a hydraulic press. Under the action of heat and pressure, a hard rigid plate is obtained."

47. METALLURGY & PLASTICS FOR ENGINEERS (Merle C. Nutt) writes at page 504

“Lamination of Plastics is a favourable method of processing casein, most of the aldehydes, and some of the other resins by dissolving them in organic solvents and subsequently using them as varnish for coatings and for impregnating sheets of paper, cloth or other fabrics. Layers of these sheets may then be cemented into a unit mass by pressing. Flat laminates can be produced very rapidly and inexpensively. The casein solution may be applied at room temperature by dipping, spraying or brushing and then the pressure applied either hot or cold. Although case in laminates are strongly bonded, they have a very poor resistance to moisture. The aldehyde laminates, while overcoming this disadvantage, require heat and close temperature control. The flat laminates may be sawed or cut to shape to produce such items as cams and gear blanks. Resin-bonded laminated shapes are largely used for such items as terminal boards, acid-resistant tubing, bearings, silent gears, radio and television parts, etc.”

At page 500 under methods of producing plastic parts the book tells us that plastics are processed to form various parts by several methods:

The method selected depends upon the shape and size of the part to be formed.

48. The ENCYCLOPAEDIA OF PLASTICS EQUIPMENT (Herbert R. Simonds) says at page 438 under Presses, rotary:

“Plastics pressing operations can be and are carried out with different kinds of platen presses, as intimated in the article on glue spreading equipment. However, rotary presses, like those made by Black Brothers, have been replacing many platen presses. One reason is that the rotary press is particularly suitable for laminating plastics with dissimilar materials, used as a base. This is a type of work often encountered. Even more significant is the fact that the rotary press is indicated when bonding with pressure-sensitive adhesives, because pressure is practically on a line-contact basis, and is progressive along the surface of materials as they pass through the machine.

Another factor making the rotary press immensely popular on this type of work is the facility with which it lends itself for incorporation into production lines. Being a roll-type machine (the same as special glue spreaders frequently used in the same line), it automatically passes the material onward along the line, at the same time it performs its basic function. Therefore, a rotary press is often found in the same production line with a glue spreader, and/or with one or two conveyorized ovens.

Basically, the rotary press is simple. Its chief functioning elements are two large-diameter rolls, nearly always rubber-covered, one of which is positioned precisely above the other. Sometimes, these rolls are driven by a single-speed motor, which provides a feed of about 30 fpm, but more often a variable-speed drive is employed, which allows any feed speed from 10 to 60 fpm. Neoprene rubber is used to cover the rolls. This rubber is from 60 to 70 duro A hardness, which will provide a perfect bond without any danger of marring of scratching."

It is very significant for our purpose that what the flat platen presses can do can be done by rotary presses. It is argued by the importers that their flat platen presses are moulds. As we have seen the forming is done by means of the pressure exerted by the plates upon the impregnated paper, and with the help of heat to form the laminate sheets/plates. It turns out, however, that the same work can be done by rotary presses whose arrangement is given in the book as follows:-

“Its chief functioning elements are two large-diameter rolls, nearly always rubber-covered, one of which is positioned precisely above the other. Sometimes, these rolls are driven by a single-speed motor, which provides a feed of about 30 fpm, but more often a variable-speed drive is employed, which allows any feed speed from 10 to 60 fpm.”

[fpm stands for feet per minute]

It cannot be claimed by any means that a rotary press consisting of two reciprocating rollers qualify to be called a mould, even though the rollers do much the same as the flat press plates or at least closely similar work and produce goods closely akin to what the plates do. The application of pressure and heat is the same, the product produced is the same; but there is no comparing the roller to the flat platen press under discussion. One is by rolling in order to form the sheet or plate of plastic, while the other remains static, the sheet to be formed in each daylight opening being gripped between two press plates. It may be possible to say that the quality of the sheets produced by the platen press hydraulic machine is of superior quality, better finish etc. etc. but this does not change the fact that it produces plastic sheet/plate just like the sheet/plate produced by the rotary press. But if we accept that the flat platen press is a mould, then we can see no good or sufficient reason for not calling the rotary presses also moulds, because after all, they are presses, they produce the same kind of goods under the same kind of condition of pressure and heat and the goods they produce are called by the same name, namely, plastic laminated sheets/ plates. One can see here the true difficulty in calling the flat platen press plates, moulds.

49. There is not one authority which calls the platen press plates moulds except the manufacturers themselves, namely, CAP. All the other authorities speak only of the process as a process of moulding, not that the equipment, that is the platen presses, are themselves moulds. It is clear that the word “mould” in respect to the processing is used by the books and authorities to mean make, fabricate or create. We have seen that the impregnated kraft paper sheets are pressed together and with the help of heat become integrated into one solid thick laminated sheet. It is hardly necessary to point out that during this process under heat, the resin melts and flows and helps in bonding the different sheets together to form one single sheet. The formation of a single sheet from a number of individual impregnated sheets of paper is the molding referred to by the authorities. But it would be a serious mistake to understand that the equipment that brings about this “molding” or forming of the sheets is a mould. The pressure and the heat needed during the process is to make the resin flow and to combine the sheets with one another so that they form a single integral sheet. No forming is imparted to the sheets during the pressing operation - there’ were flat plane-surface sheets before the process and they remain such sheets afterwards but with the difference that after the pressing/laminating process they have integrated into a thicker flat surface stiff sheet called a laminate; it would be useful to bear in mind that the products are called laminates or laminated plastics, a name that describes not only the manner of the structure but also the manner in which such structure was formed. One of the meanings given to the word “mould” in the Shorter Oxford English Dictionary is “to create, produce, or form out of certain elements or materials, or upon a certain pattern; also, to plan, design. Also with up. This word, as a verb is used to mean create or form and all the books where plastic laminates are said to be molded, use the word as a verb, or as a verbal noun molding to signify, create or the process of molding i.e. creating. The thick sheets/plates are created or formed and this is all the meaning the books invest the word mould/moulding with. But to understand this use of the word ”mould" as giving to the plates the quality of being moulds in the technological meaning would distort the texts and the language.

50. A mould is a recess or hollow or a cavity into which material soft, molten, or which is otherwise plastic, is to be formed into an article or a shape that it did not have. A machinery part, for example, can be formed by pouring molten steel into a mould to give it outline or contour and the part or component which it will comprise. Such a cast or moulded part or component may or may not require subsequent finishing, machining and working to complete the process of its manufacture. Similarly, all kinds of parts, components, shapes and contours can be made by plastic being poured and moulded in moulds where they form into the required shapes with or without pressure being applied to them. The formation of the shape is brought about by the shape of the mould and the molten plastic material to be formed takes the form of the hollow mould into which it is poured and in which usually it is allowed to cool so that it takes permanent shape therefrom. In all cases of moulding, there is a definite shaping given to a lump of shapeless material, a shape or form that it can never have had but for the fact that it is placed in the mould and allowed to cool and harden in it and thus to acquire the desired shape permanently.

51. A few authorities on moulds and the meaning of moulds as understood in technology will suffice. Marks Standard Handbook for MECHANICAL ENGINEERS (McGraw-Hill Book Company) eighth edition contains some informative paragraphs on molding processes and materials. It informs us that “Molding is the operation necessary to prepare a mold for receiving the metal.” It describes melting and pouring as the processes of preparing molten metal of the proper composition and temperature and pouring this into the mold from transfer ladles. (Page 132). There are other paragraphs in this chapter on mould and moulding and they all speak of and contemplate only hollow/recesses or receptacles to receive material to be moulded and formed. A paragraph on page 132 is informative:

“Molding under pressure of synthetic plastics or rubbers requires control of temperature, heating time, and in some cases cooling time to suit the material and volume being handled. Compression molding usually requires the loading of preformed compacts or blanks in heated dies. Proforms may also be reheated electronically to save press time. Transfer molding usually first closes the die or mold with a large hydraulic cylinder to hold the joint line tight against flash and then forces the charge into the cavity by means of a smaller cylinder. Injection molding makes this process automatically by adding a hopper to maintain a supply of power, a controlled injection stroke to meter the correct amount of powder, a controlled heating zone to bring the charge up to temperature before it is injected into the mold cavities, an ejecting means, and automatic cycle timing.

Laminating of plastic bonded sheet materials uses steam or electrically heated plates or platens in hydraulic presses. Where more than one set of hot plates is used, the method of suspension opens the plate spacing for removal and reloading. Thus a dozen or more sheets of plywood can be cured at once, using sheet Tago glue interleaved between wood plies. Layers of fabric or other filler material are also cured in sheet or other forms, the curing times depending upon thermal conductivity and reaction time and, temperatures required. Different materials may be bonded together, e.g. plywood, metal foil, and patterned plastics for table tops."

The clear distinction can be seen that - authority does not speak of laminating as a process of moulding. It only speaks of bending and curing the sheet materials in hydraulic presses. In the paragraph just above Laminating we see that moulds are discussed as involving cavities in which the forming and shaping is brought about.

52. Mold steel is defined as a term at page 495 in MATERIALS HANDBOOK Brady and Clauser 11th edition McGRAW-HILL BOOK COMPANY:

“that generally refers to the steels used for making molds for plastics. Mold steel should have a uniform texture that will machine readily with die-sinking tools. It must have no microscopic porosity, and must be capable of polishing to a mirrorlike surface. When annealed, it should be soft enough to take the deep imprint of a hob, and when hardened it must be able to withstand high pressure without sinking and have sufficient tensile strength to prevent breakage of the small mold sections. It should not warp under ordinary heat-treating processes. For most plastic molding a case-hardening, low-carbon, low-alloy steel is used, but it must be of tool-steel quality and not of structural-steel grade. For hot sinking a typical analysis is 0.10% carbon, 0.50 manganese, 0.60 chromium, and 1.25 nickel. Such a steel has an annealed hardness of 120 Brinell, but will give a hardened case of Rockwell C62 and core of C21, with a tensile strength up to 120,000 psi. For molds that are machined and not hobbed, a higher carbon content is used which increases the strength of the steel.”

The Mc-GRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS second edition defines mould thus “a cavity which imparts its form to a fluid or malleable substance; to form a plastic substance by placing it in a matrix or form; the form or matrix for shaping a plastic substance.” Matrix is described as a recessed mold in which something is formed or cast."

53. Interestingly enough, mould in palaeontology is defined by the same dictionary as an impression made in rock or earth material by an inner or outer surface of a fossil shell or other organic structure; a complete mold would be the hollow space. The understanding’in technology is clear -that a mould should be a recess, a hollow or a cavity to hold the material under formation.

54. Just one more authority and the nature of the mould will be clear. The MAKING, SHAPING AND TREATING OF STEEL (Harold E. McGannon) United States Steel - Ninth Edition, gives some interesting illustrations of what a mould is understood to be. At Chapter 19 under the article Ingots, the book describes how the ladle is moved to a pouring platform where the liquid is poured or teemed into a series of molds of the desired dimensions and the steel solidifies in the molds to form a casting called ingot. In another article on Type of ingot molds, one reads that ingot mould that are in common use are tall box-like containers made of cast iron and the mould cavity for receiving the molten steel is usually tapered from the top to the bottom of the mold. There are big-end-down, and big-end-up molds and open-top and bottom-top, open bottom, closed-bottom and plug-bottom molds as well as open-top molds. There is not one word in this authoritative work that will support the view that moulds can be flat, plane-surface-like structures of the kind imported. They are all described and written about as cavities, recesses and hollows, sometimes open, sometimes closed, of various sizes and shapes, all designed to hold and form the plastic material. At page 714 on the subject of Casting of blooms, slabs and billets, there are paragraphs that describe how the metal is funneled into the moulds where it sets, the cast takes the shape of the mould into which it is formed and where it is cast. There are several such descriptions and treatment of the subject of mould and the role it plays and the shape it has. Page 531 contains two or three paragraphs in ingot moulds which are reproduced below:-

“Ingot Molds are of many types, shapes and sizes. In shape they vary from round, square or oblong molds to these occasional ones that roughly take the form of the section into which the steel is to be rolled. An example of the latter is the mold used to cast an ingot which is roughly of a beam shape which is finally finished as a large, wide-flanged beam. Generally, ingots to be rolled are of square or oblong cross section, corrugated or flutted in some cases to minimize the cracking of the ingot surface as it solidifies and continues to cool. Ingots to be rolled into blooms or billets are usually of square cross section and those to be rolled into slabs and then into flat rolled product are usually of oblong cross section. Ingots for forging are generally of a round or many sided cross section, corrugated or flutted.

Ingot cross sections and weights must be established according to the final cross section in rolling and forging, and the weight per piece of final product, with due consideration to the rolling or forging equipment of the individual plants which process the material to the final product.

Molds usually are tapered from one end to the other so that the top of the ingot cost in them is either smaller or larger than the bottom, according to whether the mold is of the big-end-down or big-end-up type (see also Chapter 19). Taper is necessary in both types to facilitate the stripping of the ingot from the mold. In the case of the big-end-up molds, taper also helps to emphasize the freezing from the sides and bottom in such a manner that the last part of the ingot remaining liquid is directly under the hot top, thus promoting soundness. The hot top itself may contain 10 to 15 per cent of the total ingot weight.

Originally hot tops were refractory hollow-tile shapes, or metal castings lined with refractory material, placed upon the tops of the mold which usually were good for one pouring. At present, the larger proportion of hot tops are refractory-lined steel or iron castings with suitable coatings applied between pourings. The linings may last for twenty-five heats or more. Practically all hot tops, whether of the lined-metal-casting or hollow-tile type. are now inserted into the top of the mold and are supported at various heights depending on the length and required weight of the main body of the ingot. Chapter 19 describes the effect of a hot top."

The following paragraphs describe the thickness of mold walls:-

“Mold wall thickness ranges from about 4 inches for a 20-inch ingot to about 6 inches for a 32-inches ingot. For molds used to cast large ingots for slabbing mills, the wall thickness may be made somewhat greater for optimum mold life. The life of ingot molds has been found to be a function of the ratio of mold weight to ingot weight.”

Evidently an enclosed space like a mold must have walls to hold the material under forming.

55. It is not necessary to labour the point any further. Sufficient material has been recorded above to disprove the contention that the flat press plates can be classified as molds; they are not moulds even though they have been called so by their manufacturers.

56. Another argument advanced by some importers is that these are component parts of machinery and should be assessed under heading 84.59. The difficulty with this assessment is that the press plates are neither machines nor mechanical appliances with individual functions but are merely steel plates which are to be operated in conjunction with the hydraulic press. They have no individual function nor can one call them appliances, especially when their assessment is more appropriate under Chapter 73.15. Once a conclusion is arrived at that the flat presses are not moulds to qualify assessment under 84.60, they would qualify only under 73.15 as assessed by the Custom House.

57. It has been vehemently argued on behalf of the importers that these press plates have been given several special characteristics which set them apart from stainless steel sheets. It is said they cannot be used as stainless steel sheets in the manufacture of, say, utensils and other products because of their hardness etc. They have been given a high glass finish which is not necessary in stainless steel sheet or plate that they are martensitic steel a quality that fits them only for their work to which they will be put i.e. as moulds to mould the plastic sheets. This is to entirely misunderstand the heading 73.15. This item covers alloy steel and high carbon steel sheets and plates. For all their special qualities and unusual characteristics, unheard of in any stainless steel plates, these goods are nothing but stainless steel plates and sheets. These flats look like plates and sheets and are of the dimension and shape of stainless steel sheets. There is no authority for saying that a stainless steel sheet ceases to be a stainless steel sheet if it is a sheet with special qualities like the goods under importation. The qualities that these goods possess will not disqualify them from being called and assessed as stainless steel sheets. Note (n) under Chapter 73 requires that sheets and plates should be assessed under this heading provided they have not acquired the character of articles or products falling under other headings. The importers have tried very hard to show that the platen presses fall under Chapter 84 but the weight of authority is not in their favour.

58. The goods cannot be said to be parts of hydraulic press, because though they work in conjunction with the press they do not form part of them. These steel sheets can be removed from the hydraulic press without in any way impairing the functioning of the hydraulic press. To say that without their being fitted the work will not be complete and the product will not be produced by the hydraulic press is not really an argument, because the principle of a hydraulic press has nothing to do with the presence or the absence of the platen plates. The final work to make the plastic sheet may be given by the flat plates and without them the laminates cannot be created but that is not to say that they are part of the hydraulic press. The platen press is undoubtedly an accessory that has to be fitted to the hydraulic press if it is to do its work, but this will not make the platen press a component part of the press. It would be like saying that the thread is a component part of the sewing machine, because without the thread the machine cannot sew or stitch the cloth and hence cannot produce the final product; or like saying that the wick is a component part of the kerosine oil lamp, because without it the lamp will be do its work of shedding light in the dark, or like saying that the blade is a component part of the safety razor, because without it the razor will not shave. Instances can be multiplied but these few will do to prove the point.

59. A number of court decisions were cited before us by the two sides. They are listed below:-

None of these decisions discuss how a platen press of the kind imported should be assessed, except the decision in respect of Calico 1983 ECR 329. That decision was given under the repealed customs tariff, wordings of which were different from the tariff in force since 1976. However, the Tribunal by a majority of two decided that press plates for use with a hydraulic press should be assessed as stainless steel plates. In a manner of speaking that decision supports the view that platen press plates will not qualify to be assessed as parts of machinery.

60. One of the court cases quoted by M/s. Bakelite Hylam is 1984 ECR page 886 in which the High Court decided that the Government of India’s long standing practice to allow goods to be imported under particular import control policy would lessen the impact of a subsequent import and would not render it a contravention of the law, when the long standing practice had been going on for several years. This is not the case here. There is no long standing practice on the part of the Custom House, although there may have been a few importations in manners not covered by the law of import control.

61. It was urged on behalf of Waldekor that no decision should be taken except within the limits of the Appellate Collector’s decision which is now the subject of review in their case. This decision of the Appellate Collector is dated 15.8.1980 in which he came to the conclusion that the plates should be assessed under chapter 84. It is not easy to see what the learned counsel for M/s. Weldekor meant by this submission, because the review notice dated 26-9-1981 made it clear that the Government of India thought that the correct assessment of the goods was under 73.15 rather than under 84 as ordered by the Appellant Collector. The review, if made, will involve reassessment of the goods under chapter 84 and the assessment which the Appellate Collector made is to be rejected. For reasons already discussed above, the assessment ordered by the Appellate Collector cannot be supported and needs to be set aside. The dispute in M/s. Weldekor involved only the question of assessment. There appears to be not any other dispute from the order of the Appellate Collector. Therefore, we need not go into any other point that may arise.

62. On behalf of M/s. Bakelite Hylam it was argued that they did not receive any notice for review in respect of the cases which the Government of India wanted to review. This is quite true, but the notice carries an anne-xure of the orders-in-appeal which the Government of India sought to review and two orders-in-appeal relating to the importations by M/s. Bakelite Hylam are listed, namely, S/49-1477/80R and S/49-122/80R. There has been an omission in not addressing the notice to M/s. Bakelite Hylam and not calling upon them by name in the notice to show cause why the orders of the Appellate Collector respective to them should not be reversed or set aside. The omission is not such that the annexure does not remedy. After all, the anne-xure shows clearly that the cases concerning M/s. Bakelite Hylam were not correct in law and that government proposed to review the appellate orders listed there. The notice was issued on 26-9-1981. It would make it in time for the purpose of Section 151(3) of the Customs Act, 1962. Therefore, even if the notice did not address itself to M/s. Bakelite Hylam, it seeks to review those orders listed in the annexure. It is not that M/s. Bakelite Hylam have not been able to present their side of the case and to show cause why the review should not be carried out. They have presented their case fully before this Tribunal and have been heard fully and extensively. It is not right that mere dialectics should frustrate the law. The review is otherwise in order and this Tribunal agrees that the orders of the Appellate Collector which the notice seeks to review are indeed improper and incorrect and need to be set aside.

63. The goods shall, therefore, be assessed in accordance with Chapter 75 as desired by the Custom House upholding the orders of the lower authorities. However, the orders-in-appeal which are the subject matter of the appeal by the department before this Tribunal ar’e set aside and nullified and the assessment of these goods shall be done in accordance with the assessment made in all the other cases.

64. [per: S.D. Jha, Vice-President (J)]. - The material facts for decision of the appeal, the arguments advanced and the relevant literature have all been referred to by Brother Syiem in his detailed order and repitition of the same is unnecessary. I, however, am not able to persuade myself into agreeing with Brother Syiem about the plates imported for plastic industry not meriting classification as ‘Moulds’. I would briefly record my reasons for doing so.

65. The catalogue referred to in para 42 of Brother Syiem’s order and other published literature referred to in paras 44, 45 and 46 would support the appellants claim that the product in question in plastic industry is treated as ‘Mould’. I would not decide the issue with reference to dictionaries or with reference to the meaning of molding in steel industry. In this view of the matter it is unnecessary for me to record a finding on the alternative plea of the importers regarding the products being classifiable under heading 84.59(2). I would accept the importers plea for classification under heading 84.60 in preference to heading 75.15 claimed by the Revenue.

66. I would, however, agree with the finding in para 62 that the review notice issued by the Government of India also related to imports made by M/s. Bakelite Hylam Ltd.

67. [per: S. Duggal, Member (Judicial)]. - I have respectfully gone through the order recorded by Vice President (J), and also the elaborate order recorded by my Learned Brother Shri H.R. Syiem. On a cumulative consideration of the material on the subject, as reproduced in the order of Learned Brother Syiem, I am inclined to say that the issue of classification is not wholly free from doubt, and that much can be said in support of the plea of the importers, for assessment of the subject goods under Tariff heading 84.60. While, therefore, agreeing with the conclusion of the Learned Vice President (J), I wish to add following observations.

68. It has to be borne in mind that the issue is plainly that of ‘classification’. It is an accepted proposition by now that the burden of establishing classification, in a specified category of goods, is sguarely on the Revenue. It is, therefore, on the Department to show beyond a shadow of doubt, that these goods, which are described as ‘press plates’ or ‘flat moulds’, can be characterised as simple ‘sheets and plates’ within the meaning of TI 75.13 of the CTA, with reference to which these goods have been classified as ‘stainless sheets’ under TI 73.15. This definition, as given in Chapter Notes to Section XV, [1(n)], expressly excludes goods which ‘assume the character of articles or of products falling within other headings’.

69. It is, therefore, obvious that in order to be classified as plain sheets and plates, the goods in dispute should not have even a samblance of character of any other article or product, which have been put within any other headings.

70. It is in this context that IT 84.60, under which the importers have staked their claim, has to be seen and, unless it could be said categorically that these goods cannot at all be considered even akin to moulds; their exclusion from this specific entry would not be justified nor their being taken straightway to a very general entry such as TI 75.15, read with TI 75.15.

71. It would be expedient to reproduce TI 84.60, which reads as under:-

“84.60 ‘Moulding boxes for metal foundry; moulds of a type used for metal (other than ingot moulds), for metal carbides, for glass, for mineral materials (for example, ceramic pastes, concrete or cement), or for rubber or artificial plastic materials.” (emphasis supplied)

A reading of this entry reveals that, besides speaking of ‘moulding boxes’ for metal foundry, it takes within its ambit moulds of other ‘types’ also, in relation to certain products; inter alia, of artificial plastic materials. This indicates that, besides the conventional concept of moulds, such as the cavities, contours or hollows; insofar as products of ceramic pastes, cement, rubber or artificial plastic material are concerned, certain other types which perform the function of mould could also be taken within the fold of this entry; namely, TI 84.60.

72. There is abundant material on record in the nature of literature as well as papers, pamphlets, catalogues from manufacturers, produced by the importers where these press-plates have been described as flat moulds or simply ‘moulds’. This has been amply taken note of in paragraph 42 as well as paragraphs 44, 45, 46 of the judgment recorded by my Learned Brother Shri H.R. Syiem. A reading of this material leaves no room for doubt that so far as plastic laminates are concerned, these ‘press-plates’, also called;

‘flat moulds’ or ‘press moulds’ by the manufacturers as well as the importers in most of the papers dating back to from 1978, 1979 (Reference: Paper-book in Appeal No. 1.40/79-B2 - pages 15, 18 & 19), perform the function of moulding. It appears that as to whether these are ‘flat’ or in the form of ‘cavities’ or other ‘profiles’ will depend upon the shape the end-product is intended to take. In case the final product is to be made in ‘sheet’ form as plastic laminates, then the moulding could also be, rather has to be, done by flat-moulds. There could, of course, be products with other shapes, even made’ of plastics, for which moulds of a conventional shape would be required.

73. The process of manufacture, as detailed in para 42 of the fore-going order, shows unmistakably that the products, which emerge as plastic laminates, come into being only as a result of the constituent material being put under pressure in the hydraulic-press, sandwitched or interleaved between these press-plates, placed on the top and the bottom. The dictionary meaning of the term ‘mould’, as understood in generic terms, when used as a verbal noun is ‘the process of shaping’ or anything formed by, or in, a mould. This can include ‘a formed surface from which an impression is taken.’ : Reference Chambers Twentieth Century Dictionary’, Sixth Reprint 1981 - page 860.

74. Keeping in view the process described above, it can be said, without doubt, that the plastic laminates get formed by these press-plates in the shape in which they finally emerge and, in this view of the matter, these plates function as moulds. Since entry 84.60 takes within its purview also moulds of a type used for artificial plastic industry, and these plastic laminates being products of artificial plastics, and the press-plates being a type of mould in the sense of lending shape, and contributing essentially to the final emergence of the end-product; I think it cannot be said that these can, in no case, be considered to be falling under TI 84.60. As already observed, these could fall under TI 73.15, read with the definition of ‘sheets and plates’, as reproduced above, only if they were positively and wholly excluded from TI 84.60. It is again an established proposition that, even if there was a doubt, the benefit of that doubt has to be given to the assessee. Interpretative rule 3(a) also provides a statutory guideline in this respect, laying down that -

‘The Heading which provides the most specific description shall be preferred to Headings providing a more general description.’

For all these reasons, I agree with the classification proposed by the Learned Vice President (J) for these goods; namely, under TI 84.60.

75. [Order]. - In accordance with the decision of the majority the goods in question i.e., press plates or flat moulds are held classifiable under heading 84.60 of CTA 75. The appeals by the importers M/s. Bakelite Hylam Ltd. and M/s. Wood Polymer Ltd. are accepted and review notices i.e., appeals by the Collector of Customs, Bombay, dismissed.

Equivalent 1986 (025) ELT 0240 (TRIBUNAL)