Skip to content


Empire Industries Limited Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(19)ELT572TriDel
AppellantEmpire Industries Limited
RespondentCollector of Central Excise
Excerpt:
1. the material facts in this revision application to the government of india, transferred to the tribunal and heard as an appeal in terms of section 35b of the central excises and salt act, 1944 (the act, in short) are :- (a) tiles for decoration of wall surfaces were manufactured by m/s. vitrum glass division originally. it was taken over by the appellant some time in 1967 ; (b) in june 1967, the assistant collector would appear to have classified the tiles under item 23a(4) of the first schedule to the act. an appeal against the said classification was rejected as barred by time and a revision preferred against it rejected ; (c) the appellant filed a fresh classification list on or about 19-9-1973 claiming that the goods in question did not fall within item no. 23a (4) and,.....
Judgment:
1. The material facts in this Revision Application to the Government of India, transferred to the Tribunal and heard as an appeal in terms of Section 35B of the Central Excises and Salt Act, 1944 (the Act, in short) are :- (a) tiles for decoration of wall surfaces were manufactured by M/s.

Vitrum Glass Division originally. It was taken over by the Appellant some time in 1967 ; (b) in June 1967, the Assistant Collector would appear to have classified the tiles under Item 23A(4) of the First Schedule to the Act. An Appeal against the said classification was rejected as barred by time and a Revision preferred against it rejected ; (c) the Appellant filed a fresh classification list on or about 19-9-1973 claiming that the goods in question did not fall within Item No. 23A (4) and, consequently, they are not excisable. On the rejection of the request for re-classification, the Appellant carried the matter in Revision to the Government of India. In disposing of the said Revision, by the order dated 16-2-1967, the Government directed an examination of the matter on merits (Exhibit 'D' to the Revision Application) ; (d) on such examination, the Assistant Collector, by his order dated 31-5-76, came to the conclusion that the tiles, in question, are building material and cannot be classified as "Glassware" under Item No. 23A(4) of the First Schedule to the Act. He held, inter alia that :- (i) ordinary glass and the tiles in question are distinct from each other, though identical raw material is made use of in their manufacture to a great extent; (ii) the Deputy Chief Chemist in his opinion was uncertain and required the views of the trade to be elicited before deciding the issue as to whether the tiles can be said to be "other glassware"; (iii) on the evidence adduced from the trade as well as upon independent enquiry (Supdt.'s letter No. CEX 20/76/903 dated 21-5-76) it would appear that the Appellant's products are not available with those who deal in glassware or tableware. It is only to be found with shopkeepers and dealers who keep for sale building material like floor tiles, cement and sand, etc. ; (iv) the tiles are being assessed under a separate schedule as "roofing tiles" or "floor tiles" for the purposes of Sales Tax ; (v) accordingly, the tiles, in question, are neither glass sheets, nor glassware nor tableware, because they were not known as such in the market. Nor do they contain the basic properties and characteristics and requirements of glass and glassware. (order of the Assistant Collector at Exhibit E annexed to the Revision Application) ; (e) the Central Board of Excise & Customs, thereupon, issued a notice dated 25-5-77, in exercise of the powers vested in it under Section 35A of the Act (as it read then), requiring the Appellant to show cause as to why the aforesaid order of the Assistant Collector should not be revised, for- (i) the discription of the tiles in question as mosaic tiles by the Assistant Collector would appear to be wrong. The term "mosaic tiles" is understood in the trade to be tiles in each of which a mosaic pattern has been formed through chips of different colours distributed throughout the surface of the tiles. In the case of the Appellant there is no pattern in each individual tile. The mosaic pattern has to be contrived by the arrangement of different coloured tiles; (ii) the tiles in question are made using the same basic material as glass, viz. silico and soda. The method of manufacture is similar to that used in the manufacture of glass. The finished product has the appearance of opaque glass. Accordingly, the tiles can be classified as "other glasswares" under Item 23A of the First Schedule to the Act. (Exhibit F annexed to the Revision Application) ; (f) on showing cause, the Board in its order dated 30-3-81, set aside the Assistant Collector's order and directed that the goods in question should be classified as "glass" and "glassware" and duty should be paid accordingly, inter alia, for the following reasons :- (i) since in the notice to show cause against the revision proposed, specific reasons are given, it cannot be said that notice was issued without application of mind; (ii) it would be clear by reading the order of the Assistant Collector that he had taken it for granted that the tiles in question are mosaic tiles and are not glass. He had not, however, given any reasons ; (iii) the essential raw material for the manufacture of glass like, for example, silica, soda, lime and potash etc. are made use of in the manufacture of Appellant's product as well. Non-user of dolomite or borax in the Appellant's product accordingly, does not negate their classsfication as "glass" or "glassware". Similarly, the state of the molten matter, degree of heat or blasting of furnace are irrelevant in the consideration of the identity of the Appellant's product with the description in First Schedule "glass" or "glassware"; (iv) it is not correct to say that the manufacture of glass is necessarily incomplete unless the fusion of silica with other raw material was completed. These days nucleated glass is being manufactured which is crystalline in nature ; (v) the test report on the Appellant's product is for the same reason without any force. On the contrary, the opinion of the Chemical Examiner classifying the product as "other glass" appears to be correct; (vi) the marketing of the products in question as "Vitrum Venetian Type glass mosaic" by advertisement by the Appellate gives the lie direct to the contention that in commercial parlance and usage, they are not known as glass or glassware but as building material; (vii) even so, certain building material like sheet glass is universally treated as glass. Chapter 70 of the B.T.N., dealing with glass and glassware, refers specifically to certain type of glass for building purposes indicating thereby that even if glass is sold by dealers engaged in the sale of building material, it still remains "glass" ; (viii) when there is no separate item in the First Schedule to cover building material, it is but reasonable to examine if the composition of the Appellant's product satisfies the definition of glass and glassware in the First Schedule and classify it accordingly. It is not without significance that "Vitrum" means glass or glass like substance. (Exhibit 'A' to the Revision Application) ; 2. The sole question, therefore, that arises for consideration is as to whether the tiles manufactured by the Appellant fall within Item No.23A (4) of the First Schedule to the Act.

3. Before us, it was contended by Shri Habbu, the learned Advocate for the Appellant, inter alia, that :- (a) in a Revision, it is only with the correctness, legality or propriety of the order proposed to be revised for the reasons disclosed in the show cause notice that has to be examined ; the Assistant Collector's order cannot, in the facts and circumstances of the case, be said to be incorrect, illegal or improper ; (b) the distinction, if any, between mosaic tiles and the tiles in question is irrelevant to a determination of the classification of the latter. Just because they are not mosaic tiles, they had not become classifiable under Item 23A(4) of the First Schedule as glassware. The evidence on record had conclusively established that the tiles in question were made use of exclusively in the building trade. Reliance upon such evidence by the Assistant Collector was neither incorrect nor illegal nor improper ; (c) similarity in the manufacture or identity in the raw materials made use of or an approximation in appearance, all taken into account by the Assistant Collector, again cannot justify a Revision of his order in the absence of any reason to show how his conclusion was incorrect. The Board erred in relying upon the aforesaid aspects and its own ipse dixit of nucleated glass or crystalline glass to the exclusion of evidence on record including a test report on the products in question from the National Chemical Laboratory (Exhibit I annexed to the Revision); (d) evidence from the trade was also erroneously discarded on the ground that the product was advertised by the Appellant as "Vitrum Venetian mosaic", although the Appellant had never so advertised.

Nor can the advertisement be used as evidence against the Appellant in violation of the principles of natural justice without any notice whatsoever to the Appellant. Further, the way an assessee may advertise its product for attracting customers cannot afford any criterion for classification of the goods in question under one or the other of the items in the First Schedule to the Act. [Reliance upon 1980 ELT 280- Blue Star Limited v. Union of India] ; (e) classification under the various items of First Schedule to the Act is to be determined solely by trade usage as laid down by the Supreme Court in a number of decisions; [Reliance upon AIR 1981 S.C. 1079-Indo International Industries v. Commissioner of S.T., U.P.;1983 E.L.T. 1566 S.C-Dunlop (India) Limited v. Union of India.

Our attention was also drawn to the decisions of the Tribunal in 1983 ELT 589 (Bharat Electronics Limited v. Collector of Customs, Madras)(M/s. Alliance Scientific Chemicals Company Limited v. Collector of Customs, Bombay) and(Mis.

Universal Fused Quartz and Allied Products (P) Ltd., Bangalore v. Collector of Central Excise, Bangalore) as well as those of the Hon'ble High Court at Bombay in 1981 ELT 147 (Bom.) (Techni-Glass Ltd. v. Union of India) and 1982 ELT 237 (Swadesh Mills Co. Limited v. Union of India and Ors.)1982 ECR 271-Maharashtra Safety Glass Works Pvt. Ltd. v. Union of India (g) while it may be that notwithstanding the sale of sheet glass by dealers in building material, it still remains glass, it is not necessarily and exclusively sold only by such dealers whereas the tiles in question are sold exclusively by wholesale dealers in building material. The analogy of sheet glass is illogical, for it is not exclusively used for building material. Likewise reference to B.T.N. was not called for as it is irrelevant for a consideration of the First Schedule to the Act; (h) the Board could not have ignored the classification for the purposes of Sales Tax merely on the ground that its scheme is different from that of the Act. This is to ignore the identity of the basic crucial test (for assessability of manufactured products) under both the Sales Tax as well as Central Excise legislations. It is trade usage alone that is the deciding factor in classification both for purposes of Sales Tax as well as Central Excise ; (i) the Board had seriously erred in classifying the Appellant's product as "other glass", for, Item 23A at the material time did not contain a category of "other glass". Corresponding category in Item 23A at the material time read "other glassware including tableware".

The mix-up between the entries in the First Schedule clearly established the non-application of mind in making the impugned order.

(a) it is not as if, in Revision, one is confined to the grounds taken in the notice to show cause. Material outside the record may also be taken into account for ascertaining the correctness of the order under revision [Reliance on 1983 ELT 2374-(Bellpunch (India) Pvt. Limited v. Collector of Customs, Calcutta)] ; (b) technically, glass is an amorphous, undercooled liquid of extremely high viscosity which has all the appearance of a solid. It is a ceramic material consisting of a uniformly dispersed mixture of silica (75%), soda ash (20%) and lime (5%), often combined with such metallic oxides as those of calcium, lead, lithium, cerium, etc. It can be used for structural building blocks (Reliance upon page 498 Edition- Revised by G.G. Hawley). This being so, having regard to the raw material used as well as the technique of manufacture of the Appellant's products there is nothing unreasonable in classifying them as glass in terms of Item No. 23A of the First Schedule to the Act ; (d) in quite a few decisions of the various High Courts, it has been uniformally held that "glassware" included within its ambit all Articles of glass [Reliance on AIR 1965 Mad 312, 1978 STC 9, 16 STC 452, 25 STC 100, 38 STC 93, 46 STC 92] ; (e) in AIR 1981 SC 1079, relied upon for the Appellant, the competing entries that were considered for a determination of the question of classification were "glassware" and "hospital equipment" and not "other glassware" as in Item No. 23A(4) of the First Schedule to the Act. Clinical syringes which have specialised significance and utility cannot obviously be considered as glassware when they can more appropriately be classified as hospital equipment ; (f) similarly, the case reported in 1982 ELT 237 (Bom.) can be distinguished on the language of the competing entries that came up for consideration in that case. The question for determination in that case was whether wind shields can be classified under Item 23A or 34A of the First Schedule to the Act. In the instant case, the competing entries are 23A and 68 in the First Schedule to the Act and between the two it cannot be disputed that the former is more specific just as between 34A and 23A, it is 34A which is more specific in regard to wind screen ; (g) the affidavits relied upon by the Appellant do not specifically say that the tiles in question are not glassware. No reliance can, therefore, be placed upon them to establish that they cannot be classified under Item 23A ; (h) commercial usage is not always the sole criterion for classification. A perusal of Items 3, 15 and 23D of the Act would reveal that commercial usage, where intended to apply, has been specifically provided for in the various items of the First Schedule to the Act. It is impermissible in construing the First Schedule to the Act to import commercial usage when not specifically adverted to ; (i) the end use is equally irrelevant for the purposes of classification [1982 E.L.T. 467~Indian Aluminium Cables v. Union of India (j) a reference to BTN is of no relevance, seeing that there is no residuary entry in BTN like in the First Schedule to the Act. On the contrary, it will be observed that "glass bricks" are mentioned under "glassware" in Encyclopaedia Brittanica.

5. On a perusal of the material on record and the submissions made before us and even otherwise it would appear to us that,- (a) the true test for classification of the goods in question under any item of the First Schedule to the Act, is not the actual process adopted for manufacture but the identity of the manufactured goods with the relevant description or definition in the First Schedule or failing that, in terms of commercial parlance. As was observed by the Supreme Court in Indo-International Industries v. Sales Tax Commissioner, U.P. (A.I.R. "If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment, the meaning of the term in common parlance or commercial parlance has to be adopted." (b) to the same effect was our observation in the dissenting opinion expressed in the case of Indian Cable Co. Ltd. v. Collector of Central Excise=(1984 E.L.T. 434). To recapitulate.it is "excisable goods" produced or manufactured in India that are subjected to levy of excise at the rates set-forth in the First Schedule to the Act (Section 3 of the Act) "Excisable" goods are those specified in the First Schedule to the Act. Once, therefore, an Article is, admittedly, named or clearly described or defined in the First Schedule to the Act it becomes assessable to duty provided the intent of the legislature in regard to its levy is manifest, regardless of whether there has been, indeed, a manufacture as understood in law, and the product is known in the market. The question as to whether there has been a manufacture in the sense that a new product comes into existence having a distinct name, character and use in the market becomes germane in a case where there is a doubt or dispute regarding the identity of the product with the description in the First Schedule ; (c) if, failing identification of the goods in question with the description or definition of the items in the First Schedule to the Act, the goods are to be classified in accordance with commercial parlance or usage, "technical and scientific tests afford guidance only within limits". [1983 E.L.T. 1566 SC.-Dunlop India Limited v. Union of India] and consequently the similarity in the process of manufacture or identity of the raw materials made use of cannot conclusively establish classification ; (d) nor is end-use (as laid down in ECR C 476 S.C.) relevant when there is no reference to it in the appropriate item of the First Schedule - itself ; (e) the same cannot be said about the test of commercial usage or parlance for identification of "excisable goods" (Section 3 of the Act) when it cannot be established by specific description or definition in the First Schedule itself. In other words, one can hardly be heard to contend that commercial usage or parlance can be relevant as an identifying test only where it has been specifically so provided ni the First Schedule itself like e.g. Items 3, 15, or 23D thereof and not in construing other items wherein there is no specific reference to commercial usage or parlance. Such a contention could never have been, conceivably, advanced for the simple reason the Act speaks of "excisable goods" (and not "Articles" or "products"). , Once conceptually, excise is a duty levied on "goods", one cannot exclude commercial usage or parlance in their identification, for goods are what are bought and sold. The contention to the effect that commercial usage or parlance can be relevant for the construction of only those items in the Schedule wherein there is specific reference to it, now surprisingly sought to be advanced for the Respondent, does not deserve any serious consideration, in the light of the decision of the Hon'ble Supreme Court in the DCM case [1977 ELT 199 Union of India v. Delhi Cloth and General Mills], wherein it has been categorically laid down that- (i) excise is leviable upon manufacture of the "goods" specified in the First Schedule ; (ii) "goods" are those that are ordinarily bought and sold in the market and accordingly known to the market.

Consequently, commercial usage or parlance becomes relevant for construing the items in the First Schedule regardless of whether so specified or not in the Schedule itself, when the goods cannot be identified from the definition or description in the Schedule (f) accordingly, in the decision of the Supreme Court in A.I.R. 1981 S.C. 1079 (referred to supra) it was held that, although "glassware" generally comprehends all Articles made of glass, clinical syringes, for example, cannot, in commercial parlance, be considered as glassware ; (g) the aforesaid decision of the Supreme Court cannot be distinguished on the ground that the competing entries that came up for consideration were "glassware" and "hospital equipment" or on the ground that the Sales Tax Act and the Excise Act being different, the ratio of a decision on a question arising under the Sales Tax Act cannot apply to a case under the Central Excises and Salt Act, when their Lordships had categorically observed that in interpreting items in both the statutes, the test for classification is the same ; (h) in the Tribunal as well, following the ratio of the aforesaid decision, we had occasion to hold that head-light covers made of glass cannot be classified in Item 23A as glass or glassware in the case of Collector of Central Excise v. West Glass Works, Firozabad [Appeal No. ED (SB)/890/83-D] [1984 (17) E.L.T. 368]. Again in Collector of Central Excise v. True Tuff Safety Glass Industries [1984 (16) E.L.T. 555] it was held that windscreens are classifiable under Item 68 rather than under Item 23A(4) of the First Schedule to the Act, following a judgment of the Bombay High Court in Maharashtra Safety Glass Works Pvt. Limited v. Union of India (1982 ECR 271). In another case before the Tribunal (Collector of Central Excise v. Emkay Glass Works- Appeal No. 1857/83-D order No. 451/84-D), the ratio of our decision in the case of M/s. West Glass Works was reaffirmed ; (i) the cases relied upon for the Respondent and adverted to in para 4(d) supra were all cases prior to the decision of the Supreme Court in A.I.R. 1981 S.C 1079 and consequently do not require any further consideration : (j) the evidence from those trading in building materials indicating common parlance or trade usage in regard to the goods in question could not have been summarily brushed aside in preference to a supposititious or spurious advertisement, despite the fact that no notice of reliance on the said advertisement has been given to the Appellant as it should have been. Nor can an advertisement, even if true and attributable to the Appellant furnish any criterion for classification of the appellant's products under one or the other of the items in the First Schedule to the Act. (1980 ELT 280-Blue Star Limited v. Union of India), The affidavits are not meant to classify the goods under one item or the other but are to indicate trade practice in regard to the products in question. They cannot, therefore, be discarded merely on the ground that they do not specifically say that the goods are not glassware ; (k) sheet glass affords no analogy when it is not as if it is sold exclusively by wholesale dealers in building materials.

6. In the result the Revision/Appeal succeeds and the notice to show cause as to why the order of the Assistant Collector should not be revised is discharged. We hold that the Appellants product cannot be classified under Item 23A of the First Schedule to the Act.

7. There has not been rnuch effort from the side of the appellants, namely, M/s. Empire Industries Limited to disprove the Board's claim that the tiles were glass or glassware. The most it has done was to refer to a certificate given by the National Physical Laboratory, Poona which reports as below- On comparison it can be seen that the samples have some of crystalline material some glassy phase is also present.

8. This report makes a distinction between a pure glass and a crystalline material, the first showing no diffraction lines and the second showing diffraction lines. The appellants' samples on test were reported to show a few diffraction lines. The report mentions that the samples had some crystalline material and that some glassy phase was present.

9. This report, therefore, supports the claim that the tiles called Vitrum Venetian Tiles have a glassy character, show glassy phase, although they are not pure glass. It will be noticed also that while the test reports crystalline materials as having diffraction line and a pure glass no diffraction line, the samples from the factory show a few diffraction lines. We have seen the manufacture of the tiles in which materials like sand, soda, lime potash are used; these are the very materials which are used in the manufacture of glass.

10. The appellants have produced affidavits from persons in the trade.

These affidavits show that the tiles are exclusively used in the building trade. They do not tell us much about the characler of the goods; that is, whether they are glass or not. There is no need to dispute the statement that the Vitrum Venetian Tiles are used in the building trade because we are satisfied that indeed they are. The only thing that will matter for this purpose, however, is whether the subject goods are goods which qualify for assessment as glass or glassware under Central Excise Tariff. There is little doubt that they are glass in nature and substance, as is borne out by the raw material used and the process of manufacture as well as their character.

11. It is in their use that the appellants base their defence to say that they are not commercially understood to be glass or glassware.

Their main reliance for this is on the decision of the Supreme Court in Indo International Industries v. Commissioner of Sales Tax, U.P, (AIR 1981 SC 1079). According to the appellants, the Supreme Court gave this ruling by making a special reference to the Central Excise Tariff (this appears to be an error because what the Supreme Couit referred to was the Sales Tax Act and the Excise Tax Act. The Excise Act here evidently refers to State Excise Act and not the Central Excise Act). However, the appellants say that in this ruling, the Supreme Court held that in interpreting items in statutes like the Excise Tax Act or Sales Tax Act, whole primary object is to raise revenue and for which purpose they classify diverse products, Articles and substanc s resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. In this judgment, the Supreme Court said that in popular or commercial parlance a general merchant dealing in "glassware" does not ordinarily deal in Articles like syringes, thermometers, lactometers, which Articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. The Court accordingly ruled that clinical syringes would not be considered as glassware falling under Entry 39 of the First Schedule of the U.P. Sales Tax Act.

12. However, the following significant sentences appear in the Supreme Court judgment - "Having regard to the aforesaid well-settled test, the question is whether clinical syringes could be regarded as "glassware" falling within Entry 39 of the First Schedule to the Act It is true that the dictionary meaning of the expression "glassware" is "Articles made of glass" (See: Websters New World Dictionary). However, in commercial sense glassware would never comprise Articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility." 13. The Supreme Court came to this decision clearly because it was of the view that an Article of specialised significance and utility like a clinical syringe ought not to be classed with Articles of glass and glassware. There is hardly any need to labour the point that a clinical syringe though made of glass has about it a utility and significance that no ordinary glassware can possess. It is not difficult to see why the Supreme Court came to this decision. As a matter of fact, reading the full text of the judgment one will find that the Supreme Court considered that the clinical syringe should be assessed "as hospital equipment and apparatus" under Entry 44 of the Sales Tax Schedule, for certain periods in preference to classification as glassware. A clinical syringe is an apparatus that is employed in very crucial operations and has to be used by trained person. Its utility is in spheres that a tile can never be even thought of.

14. There can be no such specialised significance and utility about a glass tile. This is a tile that is used in building as a building material. The affidavits which say that it is a building material do not take us very far because there is no item of building material in the Central Excise Tariff. Because it is a building material, there can be no reason why the tile cannot be assessed as a glass or glassware unless there are other very strong reasons, which we have not been able to discover. The Supreme Court ruling that we have seen above cannot apply to this case in spite of the advocacy of the appellant's counsel.

15. The Assistant Collector was mistaken when he said that the tiles were not glass or glassware. Indeed, his reason for saying that the tiles were neither glass sheets nor glassware nor tableware was because they were neither known as such in the market nor used as tableware nor contained the basic properties, characteristics and requirements of glass and glassware. This statement of the Assistant Collector lacks sufficient basis. For one thing he is mistaken when he says that they do not contain the basic properties in characteristics of glass and glassware. The tiles may not contain the same characteristics as pure glass, but they certainly have the characteristics and property of glass aad glassware. Their very name Vitrum is Latin for glass. The Assistant Collector says that the only common material between their Vitrum Tiles and glass are soda, lime, silica and marbles. The Assistant Collecter is, evidently, ignorant of the fact that soda, lime and silica still form 90% of all the glass in the world as they did 2000 years ago.

16. There is little doubt that the Vitrum Venetian Tiles can be appropriately assessed under Item 23A as glass and glassware.

18. The following considerations are relevant and important in coming to a conclusion on the classification of the subject goods in the Central Excise Tariff Schedule- (i) The Assistant Collector, in his order of 31-5-1976, had recorded a clear finding on the basis of the evidence submitted by the appellant as well as the independent enquiry conducted by Range Superintendent of Central Excise that the subject goods were not available with wholesalers who dealt in glassware but were available with dealers who dealt in building materials like floor tiles, cement, sand, chuna, etc. It is also seen from the Board's order dated the 13th March, 1981 that the appellants had produced before the Board eight affidavits from practising architects, buyers and dealers of the appellant's product testifying that product was available in the market where building materials were bought and sold. Some of the affidavits state that the goods were available only with dealers in building materials. The respondent had not led any evidence before the lower authorities to rebut this finding.

(ii) The Board's finding that the subject product merited classification as "other glass" in the tariff item "glass and glassware" is, in any event, unsustainable because, during the period relevant to the present dispute, the Tariff Item No. 23A did not have an entry for "other glass" which was inserted in the item only in the 1979 budget.In the Indo-International Industries v. Commissioner of Safes Tax, U.P. case-1981 ELT 325 SC-the Supreme Court held tha although according to ordinary dictionary meaning, the expression "glassware" meant "Articles made of glass", in commercial sense "glassware" would not comprehend Articles like clinical syringes, thermometers and the like which have special significance and utility and which are sold by dealers in medical or hospital equipment and not dealers in glassware. On this basis, the Supreme Court held that clinical syringes were taxable as "hospital equipment" for part of the assessment period and as "unclassified item" for the rest of the period when the item "hospital equipment" was not in existence. It is true that there is no item in the Central Excise Tariff for building materials but the question would still remain whether the subject goods are "glassware" as understood in the commercial sense.

We have already seen how the appellants established before the lower authorities that these goods were understood as "building materials" in the trade, and how the Assistant Collector relied on the Superintendent's enquiry that these goods were not available with dealers in "glassware". This position remains uncontroverted and unaffected even though one might say that, unlike clinical syringes and thermometers, these goods have no specialised features or utility about them. They are simply building materials.

(iv) The Tribunal in 1984 (16) E.L.T. 555 held that windscreens for automobiles were not "other glassware" falling under Item No. 23A(4) but goods falling under Item No. 68. During the relevant period, Item No. 34A (parts and accessories of motor vehicles), the other item in the field, did not comprehend windscreens (admittedly, parts or accessories of motor vehicles) within its compass and one could, therefore, argue that "glassware" was a more appropriate item than the residual Item 68. Yet, the Tribunal found that Item No. 68 was the appropriate item.

19. Keeping in view the aforesaid considerations, the state of the evidence on record and the Supreme Court's decision in the lndo-Intemational Industries case, there is no escape from the decision that the subject goods did not fall for classification under Item No.23A, CET. Accordingly, I allow the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //