1998(12)LCX0010

IN THE CEGAT, EASTERN BENCH, CALCUTTA

Shri P.C. Jain, Member (T) and Smt. Archana Wadhwa, Member (J)

NICCO CORPORATION LTD.

Versus

COMMISSIONER OF C. EX., CALCUTTA-II

Order No. A-1117/CAL/98, dated 10-12-1998 in Appeal No. E/R-87/96

Advocated By : Shri N. Mookherjee, Advocate, for the Appellant.

Shri R.K. Roy, JDR, for the Respondent.

[Order per : P.C. Jain, Member (T)]. - The question before us is classification of the product described as “Grooved Copper Contact Wire in Coils” of refined copper having two grooves of which cross sectional dimension exceeds 6 mm. The Revenue contends that classification is under Chapter sub-heading 7407.29 as “other profiles” attracting central excise basic excise duty @ Rs. 7350/- PMT and special excise duty @ 5% on BED. On the other hand, the appellants claimed the classification of the aforesaid product under Chapter sub-heading No. 7408.11 attracting basic excise duty @ Rs. 6150/- PMT plus 5% special excise duty on BED.

2. We however, observe that these expressions whether ‘wire’ or ‘profile’ have been defined in the chapter note under Note 1(e), (f). For the sake of better appreciation, we reproduce these definitions :

(e) Profiles

Rolled, extruded, drawn, forged or formed products, coiled or not, of a uniform cross-section along their whole length, which do not conform to any of the definitions of bars, rods, wire, plates, sheets, strip, foil, tubes or pipes. The expression also covers cast or sintered products, of the same forms, which have been subsequently worked after production (otherwise than by simple trimming or de-scaling), provided that they have not thereby assumed the character of articles or products of other headings.

(f) Wire

Rolled, extruded or drawn products, in coils, which have a uniform solid cross-section along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons (including “flattened circles” and “modified rectangles”, of which two opposite sides are convex arcs, the other two sides being straight, of equal length and parallel). Products with a rectangular (including square), triangular or polygonal cross-section may have corners rounded along their whole length. The thickness of such products which have a rectangular (including “modified rectangular”) cross-section exceeds one-tenth of the width.

In the case of Heading No. 74.14, however, the term “wire” applies only to products, whether or not in coils, of any cross-sectional shape, of which no cross-sectional dimension exceeds 6 mm.

The lower authorities have held that because of the grooves having been provided in the copper wire, it dies not have any of the shapes described in the definition namely of “circles, ovals, rectangles (including squares), equilateral triangles, or regular convex polygons.....”

3. Learned Advocate Shri N. Mookherjee for the appellants on the other draws our attention to para 4.5 of the impugned order which according to him gives the shape of the cross-section of the product that is a square. We are unable to accede to this plea of the ld. Advocate. For better appreciation of the finding of the lower appellate authority, we reproduce 4.5 of the impugned order :

“4.5 From the manufacturing process mentioned in the order (original), I find that the products are manufactured by drawing into square shape having specific grooves on both sides. No dispute being raised on this factual position, I find that the shape of the cross section along with whole length of the product is a square having cut a ‘U’ shape on one side and an ‘inverse U’ i.e. `º‘ on the other hand, leaving the other two opposite sides unaffected. The number of `U’ or `Inverse U’ shapes may be more than one on each side depending on the number of grooves - but that would not affect the classification of the product.”

It is obvious from the said finding that he has nowhere held that it is square, he only says that it is a square having cut `U’ shape on one side and an `Inverse U’ on the other, leaving the other two opposite sides unaffected. The number of `U’ or `Inverse U’ shapes may be more than one on each side depending on the number of grooves-but that would not effect the classification of the product. Certainly ‘U’ shape is not a square shape. Nor a square shape having a `U’ shape on opposite sides namely one `U’ and `Inverse U’ also cannot be considered as a square as given in the definition. We are, therefore, satisfied with the plea of ld. JDR that product is classifiable as `other’ profile under Tariff Heading 7407.29 given in the Chapter Note 1(f) of Chapter 74, it cannot be classified as ‘wire’ under Tariff Heading 7408.11. It has been rightly classified under Tariff sub-heading 7407.29 as other profiles.

4. Before parting with this order, ld. Advocate has attempted to justify the case of the appellants on the commercial nomenclature as also of essential character of the goods and ISI too. In our view, those are not the material points in view of the statutory definition for the profiles and wire in the schedule of CETA, 1985.

5. No other points have been pressed before us by the appellants, therefore, we dismiss the appeal as above.

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Equivalent 1999 (107) ELT 46 (Tribunal)

Equivalent 1999 (031) RLT 0063