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

Shri Ashok Kumar, JDR, for the Respondents.

[Order per : V.K. Agrawal, Member (T)]. - In this appeal filed by M/s. Schott Glass India P. Ltd. the issue involved is whether the goods imported by them are classifiable under sub-heading 8475.90 of the First Schedule to the Customs Tariff Act as part of machine for manufacturing or hot working glass or glassware as claimed by them or are classifiable under sub-heading 7115.90 as articles of Platinum and under 8479.82 as confirmed by the Collector (Appeals).

2. Briefly stated the facts are that the Appellants imported Forehearth, Stirrer, and Nozzle which were classified by them under heading 8475.10 of the Customs Tariff. The Deptt., however, classified them under sub-heading 7115.90 as articles of platinum. The Appellants discharged the duty liability and cleared the goods from Customs. However, subsequently they filed a claim for refund of duty amounting to Rs. 36,95,990/- on the grounds that the goods are actually classifiable under sub-heading 8475.90. The Dy. Commissioner of Customs sanctioned refund of Rs. 10,35,073/- only holding that Stirrer is classifiable under sub-heading 8479.82 and Forehearth and Nozzles are classifiable only under sub-heading 8475.90 as these have nothing to do with functioning of glass forming machine. On appeal, the Commissioner (Appeals) under impugned order rejected the appeal holding that the impugned goods are made of platinum and have nothing to do with the functioning of a glass forming machine.

3. Shri V. Lakshmikumaran, learned Advocate, submitted that the Appellants manufacture glass tube for use in pharmaceutical units; that all the 3 impugned products are parts used in the glass tube forming machine; that these items have the property of being inert to the hot glass and are used to control the flow of molten glass from the furnace to the mandril on which the hot molten glass fall to form the tube. He explained the process of manufacture of glass tube according to which raw materials in desired proportion are mixed and fed into the furnace; raw material mixture comes in contact with heat in the furnace which is kept at 1600°C approximately; that molten glass is conditioned in the forehearth wherein the same is allowed to fall on rotating mandril, sleeve through the nozzle; in between forehearth and nozzle the stirrer is in rotating position to keep molten glass in homogenous condition and also help in maintaining constant temperature; the blower air is allowed to pass through the inner core of the ceramic sleeve; the drawing machine continuously draw the glass tube and cutting machine cut the same in approximate lengths; the cut length then passes through the cutting and glazing machine where the final cutting and glazing is performed as per requirement.

4. The learned Counsel further submitted that molten glass coming out of the furnace is suitable for forming tube; that in order to achieve the desired property of the molten glass, the glass has to be conditioned and has to be homogenous to get the desired quality; that the forehearth is necessary to condition the glass with the help of controlling temperature of molten glass; that the stirrer allows the glass to move on sleeve through nozzle; that the stirrer also helps for getting homogenous glass into the tube forming machine; that nozzle is placed just after the stirrer to guide molten glass to fall on the tube forming machine in a specified glass ribbon dimensions. He also mentioned that all these products are parts of glass tube forming machine and as such correctly classifiable under sub-heading 8475.90; that Note 3(k) to Chapter 71 provides that this Chapter does not cover machinery, mechanical appliances or electrical goods or parts thereof, of Section XVI and contended that these are parts of machinery of Section XVI, even though they are made of platinum and are specifically excluded from Chapter 71; that Note 2(b) to Section XVI provides that parts suitable for use solely or principally with a particular kind of machines are to be classified with the machines.

5. Countering the submissions, Shri Ashok Kumar, learned D.R., submitted that the Bill of Entry was filed by them on 20th June, 1998 and they have paid the duty on 25-6-1998 itself; that the appellants did not challenge the classification of the impugned products under sub-heading 7115.90. They have filed the refund claim only on 23-11-1998 just before the expiry of 6 months' period mentioned in Section 27 of the Customs Act; that they have not challenged the assessment when the goods were available with the customs authorities; that further the appellants were not able to substantiate their claim before both the authorities; that the Collector (Appeals) has clearly given his findings that the appellants did not furnish any evidence to prove that the impugned goods were dedicated part of glass tube forming machine. In reply the learned Advocate submitted that they had submitted the drawings and write up to the Deputy Commissioner.

6. We have considered the submissions of both the sides. We observe that the Dy. Commissioner in the adjudication order has clearly given his findings to the effect that forehearths are insulated tubes made of platinum metal used to carry molten glass and are placed between furnace and stirrer. It is difficult to comprehend as to how after such a finding the Dy. Commissioner in the next sentence concluded that the forehearth has nothing to do with glass forming machine. Once it is found by the Dy. Commissioner that it is used to carry molten glass, it cannot be claimed that it has nothing to do with the functioning of glass forming machine. The learned Advocate for the appellants has shown with the help of drawing and from manufacturing process that the impugned goods are parts of glass forming machine. Heading 8475 applies to, inter alia, machines for manufacturing or hot working glass or glassware. Note 3(k) to Chapter 71 clearly excludes the parts of machinery of Section XVI. It is not the case of the department that the impugned goods are wholly of precious or semi-precious stones. In view of this and in terms of Note 2(b) to Section XVI the impugned products will be classifiable under Heading 8475.10. The appellants are, therefore, eligible for refund of duty, if any paid in excess, subject to their satisfying the customs authorities that the incidence of duty has not been passed on to any other person by them.

Equivalent 2000 (122) ELT 0419 (Tribunal)

Equivalent 2000 (041) RLT 0395