1992(12)LCX0012

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

Shri P.C. Jain, Member (T) and Ms. Jyoti Balasundaram, Member (J)

INTERARCH BUILDING PRODUCTS (P) LTD.

Versus

COLLECTOR OF CUSTOMS

Order Nos. C/173 to 178/92-B2, dated 3-12-1992 in Appeal Nos. C/2366/89-B2, 1736-1738, 2121 & 2122/91-B2

    CASES CITED

Dunlop India Ltd. v. U.O.I. -1975(10)LCX0016 Eq 1983 (013) ELT 1566 (SC) .. [Para 3.1]

Indian Aluminium Cables Ltd. v. U.O.I. -1985(05)LCX0012 Eq 1985 (021) ELT 0003 (SC) .. [Para 3.2]

Interarch Building Products (P) Ltd. v. Collector - 1990(03)LCX0022 Eq 1990 (049) ELT 0147 (Tribunal) .. [Paras 3.2, 6.1]

Advocated By : Shri V. Lakshmikumaran, Advocate, for the Appellants.

Shri M.K. Jain, SDR, for the Respondents.

[Order per : P.C. Jain, Member (T)]. - Since common issues are involved a common order is being passed.

2. Issues involved in these matters are questions of classification of the following products :-

(1) Aluminium Rolled Products

(2) Iron and Steel Sections

Ist item was declared in the bill of entry as “raw material/component for aluminium panel”. Second item was declared in bill of entry as “components/raw material for venetian blinds”.

2.1 The appellant herein has claimed classification of the first item under Tariff sub-heading 7604.29 and for the 2nd item under Tariff sub-heading 7301.20. Department has, however, assessed both the goods under Tariff sub- heading 8302.41. Hence these appeals to the Tribunal.

3. Main contention of the learned advocate for the appellant is that the goods imported are rolled products of aluminium or of iron and steel. They cannot be used straightaway in panels for ceiling or walls or as components of ‘venetian blinds’ respectively. Number of operations are required to be undertaken on the imported goods before they can be made suitable for use as panels for ceiling or walls or for venetian blinds.

3.1 Department’s finding that these are ultimately to be used for panels for Venetian blinds and would, therefore, be covered by Tariff Sub-Heading 8302.41 is not tenable in view of the fact that classification is not dependent upon the end-use of a product. Classification of the goods under the Customs Tariff, he submits, is dependent on the goods as they are presented for assessment at the time of import. This is the clear ratio of Supreme Court’s judgment in the case of Dunlop India Ltd. & Another v. U.O.I. & Others [1975(10)LCX0016 Eq 1983 (013) ELT 1566].

3.2 He has further submitted that aluminium rolled products (profiles) are species belonging to the genus of base metal aluminium and they are, therefore correctly classifiable under Chapter 7604.29 on the analogy of Supreme Court’s judgment in the case of Indian Aluminium Cables Ltd. v. U.O.I. and Others [1985(05)LCX0012 Eq 1985 (021) ELT 0003 (SC)]. In support he further relies on Explanatory Notes at page 1063 which speaks of the Chapter 76 covering ‘products generally obtained by rolling, extruding, drawing or forging the unwrought aluminium of Heading 76.01’ (Headings 76.04 to 76.07). He also relies in support on Tribunal’s decision in the case of the appellant itself, namely Interarch Building Products (P) Ltd. v. C.C.E. [1990(03)LCX0022 Eq 1990 (049) ELT 0147 (Tribunal)] wherein it has been held that ‘aluminium perforated panel, aluminium panel, aluminium flush profile, aluminium splice panel and aluminium edge profile’ are roll formed into the said shapes and sections out of duty paid aluminium strips by using series of rollers. No other operation other than the roll form has been conducted on the strips. After the process of rolling, no other operation like punching, drilling etc. has been carried out......we are of the view that roll forming is a type of cold-rolling of strips...... The goods manufactured by the appellant are not load bearing but has decorative value". Accordingly, it was held that the goods fell under Tariff Item 27(3), as it stood at that time and the appellant was entitled to the benefit of Notification No. 183/84, dated 1st August, 1984.

3.3 Next contention of the learned advocate is that Tariff sub-heading 8302.41 speaks of base metal mountings, fittings and similar articles suitable for buildings but the word ‘building’ does not occur in the main Heading 83.02. Therefore, this sub-heading i.e. base metal mountings, fittings, and similar articles suitable for buildings must be confined to those items in the Tariff Heading 83.02 which partake the character of building. He submits that the main heading does not at all mention ceilings and walls. Therefore, the aluminium mountings, fittings and similar articles for aluminium panels for ceiling and walls would not at all be covered under the said sub-heading 8302.41. In this connection, he draws specific attention to general Explanatory Notes at page 1119 which read as follows :-

“The heading cover :

(A)............

(B)............

(C)..........

(D) Mountings, fittings and similar articles suitable for buildings.

This group includes :

(1)............

(2)............

(3)........….

(4)............

(5) Curtain, blind or portiere fittings (i.e., rods, tubes, rosettes, brackets, bands, tassel hooks, clips, sliding or runner rings, stops); cleat hooks, guides and knot holders for blind cords, etc., staircase fittings, such as protectors for staircase treads; stair carpet clips, stair rods, banister knobs.

Rods, tubes and bars, suitable for use as curtain or stair rods, etc., merely cut to length and drilled, remain classified according to the constituent metal."

[Emphasis supplied]

From the emphasised portion above of the Explanatory Notes, he points out that only those fittings which are directly suitable for use as curtain, staircase etc. are classifiable under this Heading. Since the goods have been imported in running lengths, they would not be classifiable under Chapter 83 inasmuch as they have to be cut to specific sizes according to the customers’ requirement.

4. Learned SDR, on the other hand draws attention to the examination report of the goods under dispute which reads as follows :-

“Aluminium rolled products :- This item was colour coated, given shape and design for ready fitting with little effort, viz. fabricated, punched pressed but in the length of 16.5 ft.

Iron &. Steel sections :- This item was colour coated, fabricated pressed at specific angles and was in the length of 16.5 ft.”

From the aforesaid nature of the imported goods, learned SDR has submitted that it is obvious that the goods have been given a specific shape and design; they have even been colour coated. They are merely required to be cut to suitable sizes depending on the customers’ requirement for direct use as mountings, fittings etc. It is apparent that the goods are not merely general purpose profiles and sections of aluminium or iron and steel. It is admitted to the appellants, he submits that they are meant for venetian blinds or panels for ceilings, and walls. Venetian blinds are specifically covered under Tariff Heading 83.02. Ceilings and walls relate to buildings. He, therefore, submits that the imported goods are correctly classifiable under Tariff Heading 8302.41, as held by the lower authorities.

4.1 He further draws attention to the findings of the lower authorities in respect of the two items. Lower appellate authority in discarding the plea of classification of aluminium rolled products under Tariff Heading 7604 has relied on Chapter Note 1(a) and (b) under Chapter 76 which according to him envisages that only those goods would fall under this heading as have not assumed the character of articles or products of other headings. The lower appellate authority has further given a categorical finding that the sample of aluminium rolled products presented at the time of hearing clearly shows that it is not merely aluminium rolled product, it is in the shape of a channel tapered at one end, having holes and fine cuttings, besides being painted. Since the products have been imported in lengths of 16.5 ft, each, all that is required is to cut them into required sizes for manufacturing of ceiling panels.

5. Regarding the plea of the appellant that since the main Heading 8302 does not mention buildings or ceilings, lower appellate authority has held that since walls and ceilings have relevance only in the context of buildings which is specifically mentioned in Tariff sub-heading 8302.41, aluminium rolled products for panels for walls and ceilings have been correctly classified. He has further held that the Explanatory Notes under Tariff sub-heading 8302.41 i.e. suitable for buildings provide a description of items included therein. It is not an exhaustive list. The aluminium rolled products which have assumed the characteristics of identifiable component of ceiling panels would be covered by the expression ‘similar articles’ and would go under 8302.41.

5.1 As regards iron and steel sections, the lower appellate authority has held that these are not covered under Tariff Heading 73.01 inasmuch as these are not welded angles, shapes and sections of iron and steel. The sample of the product imported is not merely a channel. It is a kind of bracket with edges of the two types bent inwards and is also colour coated. The particular size and dimensions with bending of the two sides inwards have imparted to the goods in question the essential characteristics of identifiable parts of venetian blinds. These have no other use and in the market these are sold as parts and components of venetian blinds. He has held that it is no doubt true that manufacture of venetian blinds is a complex process but that does not mean that these sections are not components of venetian blinds. It is also agreed by the lower appellate authority that for finally using them in the manufacture of venetian blinds, these have to be cut into required lengths and subjected to some other processes to enable other parts of venetian blinds to be fitted in but this does not take away their character as a component in itself of Venetian blinds.

5.2 In the foregoing submissions, learned SDR has prayed for disallowing the appeal.

6. We have carefully considered the pleas advanced on both sides. In order to appreciate the contending pleas, we reproduce below the relevant Tariff Entries :- ‘

Table

Learned advocate’s plea that classification is not dependent upon the end-use of an article, as held by the Supreme Court in the case of Dunlop India, mentioned supra, is valid so long as use or end-use is not specifically mentioned in the Tariff Entry itself but we find that Tariff Heading 83.02 uses the words “suitable for” which means “suitable for use for”. In other words, use of an article is a necessary ingredient for classification under Tariff Heading 83.02. Chapter 83 deals with miscellaneous articles - base metals. It is not denied by the appellant that iron and steel sections imported by them are suitable for use in the manufacture of venetian blinds. Once the suitability is admitted Tariff Heading 83.02 would automatically come into play. This is further strengthened by Chapter Note 1 (a) and (b) defining bars and rods and profiles of aluminium given in Chapter 76. Both these Notes indicate that bars and rods and profiles of aluminium would be covered under Chapter 76 provided that they have not thereby assumed the character of articles or products of other Headings. Tariff sub-heading 7301.20 reading as “angles, shapes and sections” is a general entry whereas Tariff Heading 83.02 is more specific in so far as iron and steel sections for venetian blinds are concerned in view of the admission of the appellants itself regarding the suitability of these sections for venetian blinds. Learned advocate’s further reliance on Explanatory Notes at page 1119 to the effect that “rods, tubes and bars, suitable for use as curtain or stair rods etc. merely cut to length and drilled, remain classified according to the constituent metal” has no application in the present case. Goods imported are not rods, tubes and bars. As is apparent from the examination report of the goods they have been given shape and design made suitable for a specific purpose. No inference can be drawn from the said Explanatory Notes, as has been attempted by the learned advocate, that only complete articles ready for fitment as mounting fittings in similar articles would be covered under the sub-heading 8302.41. Explanatory Note is confined merely to rods, tubes and bars and it cannot be extended to any other product. There is, therefore, no doubt about the classification of iron and steel sections for venetian blinds and they correctly fall under Tariff sub-heading 8302.41.

6.1 Now we will examine the position for classification of rolled aluminium products. The learned advocate has taken a plea that mountings, fittings and similar articles suitable for buildings should be restricted to the items relatable to the building mentioned in the heading itself. In other words, they should be suitable for furniture, doors, stair-cases, windows, blinds and not ceilings and walls of the building since they are not mentioned in the Heading. It is true that walls and ceilings are not specifically mentioned in Tariff Heading 83.02 for which base metal mountings, fittings and similar articles are to be suitable for. Nevertheless, we are of the view that such fittings and fixtures of the base metal (aluminium) which have been imported and which are to be used for ceilings, walls, etc. would still be covered by Tariff Heading 83.02 and proper sub-heading for it would be 8302.50 pertaining to hat-racks, hat-pegs, brackets and similar fixtures. Bracket has been defined in Concise Oxford Dictionary as (1) flat-topped projection from wall serving as support to statue, arch etc. (2) shelf with slanting under-prop for hanging against wall (3) wooden or metal angular support ; (4) support of lamp, projecting from wall. The expression ‘similar fixtures’ occurring in Tariff sub- heading 8302.50 would cover all fixtures of walls since bracket is a fixture on the wall. No distinction has been made on record by the appellants that the fixtures manufactured by it are different in shape and designed for walls and ceilings separately. We, therefore, hold that aluminium rolled products used admittedly as fixtures for walls, ceilings etc. would be covered by this sub- heading 8302.50. We may mention at this stage that lower appellate authority’s finding and observation to the effect that “the aluminium rolled products which have assumed the characteristics of identifiable component of ceiling panels would be covered by the expression ‘similar articles’ and would go under 8302.41 only” is not strictly speaking correct because the expression ‘similar articles’ used in Tariff Heading 83.02 relates to similarity of article with base metal mountings and fittings and it does not relate to similarity in suitability for any article other than the ones mentioned in the Tariff Heading itself i.e. furniture, doors, staircases etc. but as held above, aluminium rolled products under consideration would be covered by Tariff Heading 8302.50 within the expression ‘similar fixtures’. Lastly, learned advocate reliance in support of his plea on the Tribunal’s decision in the case of Interarch Buildings, mentioned supra, is not correct. In the said decision, the Tribunal was dealing with classification of the rolled products of aluminium under Tariff Item 27(3) of the erstwhile Central Excise Tariff read with the applicability Notification 183/84-C.E., dated 1-8-1984 vis-a-vis their classification under Tariff Item 68. That judgment has, therefore, no application to the facts and circumstances of this case. Tariff Heading 83.02 is more specific to the articles in question than Tariff Heading under Chapter 76 claimed by the appellant.

7. In view of the foregoing discussion, we do not find any merit in the appeal and we accordingly reject it.

Equivalent 1993 (65) ELT 80 (Tribunal)