2010(05)LCX0077

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

P.G. Chacko, Member (Judicial) and S.K. Gaule, Member (Technical)

Commissioner of Custom (General), Mumbai

Versus

Midas Impex

Final Order Nos. A/158-159/2010-WZB/C-II/(CSTB), Customs Appeal No. C/316/2002 And Cross-Objection No. C/Co-321/2002 Decided On: 13.05.2010

Cases Quoted -

Ergo Auto Ltd. v. Commissioner 2004(02)LCX0381 Eq 2004 (166) ELT 0060 (Tri - Del.) (Mentioned)

Advocated By -

Manish Mohan, Authorized Representative (SDR) For the Appellant
S.N. Kantawala and Brijesh Pathak, Advs. For the Respondent(s)

ORDER

P.G. Chacko, Member (Judicial)


1. In this appeal filed by the department, the dispute relates to the classification of goods which was declared by the Assessee as "spectacle lens (made of plastic)" in the relevant Bills of Entry which were filed on 10th September, 2001. Out of four Bills of Entry, two covered one type and the remaining two covered a different type of goods. The first type of goods was a circular, not optically worked, tinted, curved piece of plastic, which had no optical property. The second type of goods was an article of plastic for protecting both the eyes, which consisted of the front portion of a spectacle frame with two eye covers. This article was made out of a single piece of coloured transparent plastic and did not possess any optical property. The Assessee classified both the types of goods under SH 9001.40 for the purpose of payment of Basic Customs Duty (BCD) and under SH 9001.10 in respect of Counter vailing Duty (CVD). Goods falling under SH 9001.10 were chargeable to "nil" rate of duty. It appeared to the customs authorities that the subject goods were not classifiable under SH 9001.10. According to them, they were classifiable under Heading 90.04. The original Authority classified the goods under this heading, along with sunglasses, after referring to the relevant Tariff entries and HSN Explanatory Notes. In the appeal filed by the Assessee, the learned Commissioner (Appeals) classified the first item under SH 9001.50 and the second one under SH 9004.90. In the present appeal filed by the department, both the items are sought to be classified under SH 9004.10. The Respondent (Assessee) has filed written submissions styled as "Cross-Objections".


2. The learned SDR has reiterated the grounds of this appeal and the learned Counsel has reiterated the written submissions filed by the Respondent. Both sides have extensively referred to HSN Explanatory Notes. The learned SDR has also relied on the Tribunal's decision in Ergo Auto Ltd. v. Commissioner 2004(02)LCX0381 Eq 2004 (166) ELT 0060 (Tri. Del.), wherein driving sunglasses were held to be classifiable under SH 9004.90 of the CTA schedule. The learned Counsel for the Respondent has referred to Order-in-Appeal No. 580/97 dated, 7th August, 1997. On a perusal of the records, we find that the first item is a circular, curved, tinted piece of plastic, not optically worked. Obviously, it has no optical property. It could be cut to size for obtaining eyepieces to be fitted to spectacle frames. The classification claimed by the Appellant is SH 9004.10 whereas, the Assessee is in support of classifying the item as a "spectacle lens" under Heading 90.01. The rival headings are reproduced below:

9001-Optical fibres and optical fibre bundles, optical fibre cables other than those of Heading No. 85.44; sheets and plates of polarising material; lenses (including contact lenses), prisms, mirrors and other optical elements of any material, unmounted, other than such elements of glass not optically worked.

3. It is evident from the description of goods given against the various subheadings under Heading 90.01 that any goods to be classified under these entries should be optically worked. The first sub-heading expressly covers optical fibres and optical fibre bundles and cables; the second sub-heading covers sheets and plates of polarising material, which, according to HSN Explanatory Notes, have optical property. The next three sub-headings cover lenses. A lens, whether of glass or other material, is a piece of transparent substance having two opposite surfaces, either both curved or one curved and one plain, used in changing convergence of light rays, as for magnification, or in correcting defects of vision, according to the Webster's Dictionary of English language. The learned SDR has also given an account of the physical characteristics of lenses. Accordingly, a lens can be plano-concave, plano-convex, bi-concave or bi-convex, depending on the particular requirement of the person who needs correction of defect of vision. In other words, lenses result from optical working of glass or other material. The last sub-heading under Heading 90.01 cannot cover any goods not optically worked as is evident from the language used for the description of goods against the main heading 90.01. The item under consideration is, admittedly, a piece of plastic not optically worked and with no optical property. The mere fact that it may be cut to size into eyepieces for fitment to spectacle frames would not ipso facto make it anything classifiable under Heading 90.01. Classification of the item under consideration will, therefore, have to be considered under Heading 90.04. This heading covers sunglasses and items other than them. On a perusal of the explanatory notes under HSN Heading 90.04, we find that SH 9004.10 is intended to cover articles (usually comprising a frame or support with lenses or shields of glass or other material), for use in front of the eyes, and that such articles are generally intended either to correct certain defects of vision or to protect the eyes from smoke, dust, gas or dazzle. These notes further indicate that protective spectacles and goggles generally consist of plain or curved discs of ordinary glass (whether or not optically worked, or tinted), of safety glass, of plastic, of mica, or of metal. These articles include sunglasses. The item under consideration, which is only a circular, curved, tinted, piece of plastic cannot be described as a spectacle or goggle and for that matter, cannot be a sunglass. However, it can definitely be classified under the residuary Sub-heading 9004.90. The Lower Appellate Authority classified this item under 9001.50, which we have already ruled out for reasons stated hereinbefore.


4. Learned Commissioner (Appeals) classified the second item under SH 9004.90. The Appellant wants this item to be classified as sunglass under SH 9004.10. As we have already noted, this item is a single piece of coloured, transparent, plastic which forms the front portion of a spectacle frame with two eyecovers. It also does not have any optical property. Learned SDR has submitted that this item has the essential characteristics of sunglass inasmuch as it would become a sunglass if fitted with two arms for the purpose of being mounted over the nose of a person. We find that Heading 90.04 includes spectacles, goggles and the like used for protective purpose, for which the glass or other material need not be optically worked. We have already referred to the explanatory notes given under HSN Heading 90.04. We may point out, at the risk of repetition that protective spectacles and goggles generally consist of plain or curved discs of ordinary glass (whether or not optically worked or tinted), of plastic, of glass, etc. and these include sunglass. These Notes further indicate that sunglasses could be used by mountaineers, airmen, motorists, motorcyclists, welders, foundry workers, etc. Nowhere is it stipulated that these items would not be classified under SH 9004.10 unless these are fitted with arms or other accessories for the purpose of being mounted. Therefore, it appears to us, the item under consideration would appropriately get classified under SH 9004.10 as sunglass. In the case of Ergo Auto Ltd. (supra) cited by the SDR, driving goggles were classified under SH 9004.90. The case of the Revenue was altogether different in the cited case. On the other hand, in the instant case, it has been argued by the learned SDR that the item under consideration has the essential characteristics of a sunglass and would not cease to be one for want of the supporting arms. We accept this argument. In the result, the item gets classified under SH 9004.10.


5. In the result, this appeal of the Revenue is partly allowed.

Equivalent 2010 (178) ECR 0322 (Tri. - Mumbai)

Equivalent 2010 (256) ELT 0241 (Tri. - Mumbai)