TMI Blog2000 (9) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... hese classification lists, apart from complete doors, windows, the assessee had indicated that it proposed to clear doors and windows KDC condition (completely knocked down condition). Six such classification lists were approved. Subsequent to such approval, the department issued notice dated 28-5-1994. The notice demanded, mainly, duty on the ground that doors, windows and their frames cleared in completely knocked down condition were not classifiable under heading 3925.20 which has been claimed and approved but under heading 3525.99. The notice also proposed recovery on two other counts. The first was that the expenses incurred by dealers of the assessee on advertisement of the products manufactured by it should from part of the assessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewhere specified or included. The sub-heading that has been claimed and approved was 20. Doors, windows and their frames and thresholds for doors. The Commissioner has confirmed it in sub-heading 99. - Other , the residuary entry. 4. It is also necessary, at this point, to refer to Note 11 to Chapter 39. This note limits heading 39.25 only to the articles listed therein not being products covered by any of the earlier headings of sub-chapter II. Clause (b) of this note which has been relied upon by the department, covers structural elements used, for example, in floor, walls, partitions, ceilings or roofs. Sub-heading 39.30 is for shutters, blinds (including venetian blinds) and similar articles and parts thereof. After this, are two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment is able to show that these articles are not products covered by any of the sub-headings of sub-Chapter 2 of the Chapter; the goods cannot be classified under heading 39.25. This is clear from the note 11 and from the heading itself, builders ware of plastics, not elsewhere specified or included. The correctness of this argument has to be accepted. It is only those goods, which would not be covered by any of the earlier headings of sub-Chapter 2 of Chapter 39 that fall for classification under this heading. In other words, it is only those articles of plastic which, when removed from the factory are clearly identifiable as any of the items specified under note 11, which would be classifiable under that heading. Therefore, unless it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiling. For such use they have to be given some special attributes by means of shapes or strength. In that case, it would be needless expenses to use these items for fabricating the doors. The goods used for structural wall, partition or ceiling with load bearing capability are different than those used for doors, windows and their frames, where aesthetics would be more important than load bearing. There is nothing to show that these goods had acquired the characteristic of such elements. 9. The Departmental Representative s contention that the assessee had earlier classified these goods as structural element is no answer. Certainly the assessee s conduct in earlier classifying these goods under one heading and subsequently classifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are covered earlier. If the goods in question were profiles shape or section, they would then be classifiable under that heading. 10. We are therefore not satisfied that a proper case has been made for classifying these goods. 11. The position would be equally true with regard to those sections which the assessee included in its factory and later cut to size for making doors and windows cleared and assembled as such. No one would first make structural elements for roofs etc. and thereafter cut them down so as to make doors, windows, and their frames out of the cut sections. 12. We, therefore, hold that a case had not been made out by the department for classifying these goods under heading 3925.99. Although the classification c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal does not successfully question this Commissioner s finding but merely reiterates the facts which the Commissioner has himself considered. The statement of N. Kannan, Manager of a buyer that in some cases the sections were not cut to any size but sold as such does not really help the department. He also says that the buyer would have to employ carpenters to cut and assemble plastic sections to make doors. This is not very different from what the assessee had said. We therefore do not find any reason to interfere with the finding of the Commissioner on limitation. 14. The remaining issue of demand is for inclusion of expenses incurred by the assessee s dealers towards advertising of the assessee s product, which the Commissioner has inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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