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Olembic Glass Industries Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)(14)ELT2022TriDel
AppellantOlembic Glass Industries
RespondentCollector of Customs
Excerpt:
.....heading 85.11(1) of the cta 75 it is apparent that although molybdenum electrode is used in an electric furnace it cannot be deemed as a part of electric furnace, it being more in the nature of an accessory of an electric furnace. even if it is taken for granted that molybdenum electrode falls broadly under heading 85.11(1) of the cta 75 it cannot be gainsaid that it would fall more specifically under heading 81.01/04 (1) of the cta 75. regarding the alternate classification under heading 85.18/27(3) of the cta 75 claimed by the appellants is obviously unacceptable as the goods do not fall within the scope of heading 85.18/27(3) of the cta 75. for reasons stated above, the goods merit re-assessment under heading 81.01/04(1) of the cta 75. but as the incidence of duty under heading.....
Judgment:
1. The Revision Application dated 17-5-1980 against order No.S/49-523/80 dated 23-4-1980 passed by the Collector of Customs (Appeals) Bombay, has been transferred by the Government of India to the Tribunal for disposal in terms of Sec. 131B (2) of the Customs Act, 1962.

2. A refund claim arising out of re-assessment of Molybdenum Glass Electrodes under heading 85.11 or 85.18/27 (3) as against original assessment under heading 85.12 made vide B/E No. 2124 dated 18-5-1979 on the ground that the said electrodes are not heating resistors, was rejected as untenable by the Asstt. Collector of Customs (Refunds). He held that the correct classification of the electrodes would be under heading 81.01/04 (I) which attracts the same rate of duty as heading 85.12 of CTA 1975. Collector of Customs (Appeals) confirmed the Asstt.

Collector's decision giving reference to another case, appeal No.S/49-4/79 dated 1-3-1979. The operative part of that order is reproduced below : "I have considered the appeal carefully and I observe that the appellants had originally claimed assessment under heading 85.11(1) of the CTA and that they are now claiming alternatively classification of the goods under heading 85.18/27 (3) of the CTA, As regards the classification claimed under Heading 85.11(1) of the CTA 75 it is apparent that although molybdenum electrode is used in an electric furnace it cannot be deemed as a part of electric furnace, it being more in the nature of an accessory of an electric furnace. Even if it is taken for granted that molybdenum electrode falls broadly under Heading 85.11(1) of the CTA 75 it cannot be gainsaid that it would fall more specifically under Heading 81.01/04 (1) of the CTA 75.

Regarding the alternate classification under heading 85.18/27(3) of the CTA 75 claimed by the appellants is obviously unacceptable as the goods do not fall within the scope of Heading 85.18/27(3) of the CTA 75.

For reasons stated above, the goods merit re-assessment under heading 81.01/04(1) of the CTA 75. But as the incidence of duty under heading 81.01/04(1) of the CTA 75 is the same as obtaining under Heading 85.12 of the CTA 75 no benefit accrues into the appellants. Consequently the appeal fails and is rejected accordingly." In addition he had observed that except threading at one end, these are just rods of circular cross section in cut lengths.

3. In the present appeal it is explained that these are not just rods of molybdenum, as in the case of molybdenum electrodes. (1) Chamber does not exceed 0.050" per foot, (2) they are manufactured by a special process for their high purity and for being brought to the desired shape and size and (3) their surfaces are made suitable for glass melting furnaces. Further these rods have extremely good electrical conductivity and are used at the terminal point of their electrical circuit of more than 400 volts or 20 Amps for carrying current to the cold glass batch in the glass melting furnace. The manufacturers' literature and drawing to substantiate that these are electrodes and not just rods of cross section with threads, were also enclosed to establish assessment under heading 85.18/27(3) and consequently 85.11(1) and not 81.01/04.

4. Shri Pradhan maintained that the physical properties of molybdenum in electrodes are quite different from those of molybdenum in general articles. These electrodes are specially designed only to carry current and are not consumed in the process, since they form part of the furnace. Industrial furnaces as described in Section XVI, 85.11 covers closed vessels and also parts and equipment to develop high temperature in the vessel. According to note 2(b), parts if suitable for use principally with a particular kind of machine are to be classified with machines of that kind (irrespective of metals and materials used). The electrodes are covered by this explanation and since they are not "electric heating resistors" covered by heading 85,12, they should be classified under 85.11(1). Shri Pradhan avoided discussion on classification of the electrodes as 'resistors' covered by heading 85.18/27(3) in the absence of his Technical Manager, and preferred classification under 85.11(1) for the given reasons.

5. For the Department, Shri Ajwani referred to Jackson's Dictionary of Engineering defining the Joule effect, mention of which is made in the literature supplied by the appellants, and to the Explanatory Notes to Chapter XVI BTN which require all electric heating resistoes, with the exception of those of carbon, to be classified under heading 85.12. He also cited notes to Section XV BTN to show that electrodes of base metal (such as molybdenum) not coatedor cored with flux material, are excluded from heading 83.15, which, inter alia, covers certain types of electrodes. He argued that the electrodes in question are also not part of the furnace but are in the nature of accessories. Even if broadly covered by heading 85,11(1) as parts of industrial electrical furnace, they are specially covered by heading 81.01/04(1) as held in the impugned order.

6. The Tribunal has carefully considered the matter. According to the literature furnished, the subject goods are guaranteed purity to a limit of 99% minimum molybdenum and it is also indisputable that they are in the category of 'articles'. We, therefore, are in the agreement with the reasoning of the Collector that they fall more specifically under heading 81.01/04(1) as articles of molybdenum. As observed in his order, the rate of duty being the same as that under heading 85.12, no benefit accrues to the appellants. We, therefore, uphold the impugned order and reject this appeal.


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