TMI Blog2017 (4) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... - Shri (Dr.) Satish Chandra, President And Shri Madhu Mohan Damodhar, Member (Technical) Shri Sandeep Gopalan, Advocate for the Appellants Shri S. Nagalingam, AC (AR) for the Respondent ORDER Per : Madhu Mohan Damodhar Both these appeals involve identical issue, hence are disposed of for the sake of brevity. 2. Brief facts of the case are that, Appellants herein manufacture wooden products, viz. Borotik Boards out of rubber wood. The issue in dispute concerns classification of these products. Appellants classified and cleared the said Borotik boards under chapter heading 4403.00 of Central Excise Tariff Act (CETA) upto 27.02.2005 and thereafter, under CTH 4407 attracting 'nil' rate of central excise duty. However, department took the view that the products are required to be classified under chapter heading 4405.90 till 27.02.2005 and thereafter under CTH 44091090 attracting 16% advalorem duty. 3. In appeal No. E/296/2007, SCN dated 29.06.06 was issued to the appellants proposing classification of Borotik Board under chapter sub heading 4405.90 till 27-02-2005 and thereafter under 44091090, attracting duty liability of 16% advalorem, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original/lower appellate authority. Appellants further contend that their products are not referred to as a continuously shaped board by those in the trade who are aware of the various types of wood articles available in the market. It is also submitted that the departmental authorities had themselves taken the view in adjudication proceedings relating to other manufacturers of the same item, that the item was correctly classifiable under the erstwhile heading 4403.00 of CETA. 6. On 18.1.2017, when the matter came up for hearing, on behalf of the appellant, Ld. Advocate Shri Sandeep Gopalan, reiterated the grounds of appeal and the Argument Notes filed during hearing, and submitted that because rubber wood logs are very small in diameter, they cannot get wide planks, hence they carry out processes on sawn rubber wood resulting in emergence of boards by finger jointing lengthwise and edge glued widthwise. He further submitted that the resultant board was correctly classifiable only under erstwhile CTH 4403 (present heading 4407). He placed reliance on the Tribunal's decisions in the case of CCE, Calicut Vs. Rubco Haut Woods (P) Ltd. - 2007 (210) E.L.T. 710 (Tri. - Bang.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fine finish. The finished product is referred to as Borotik board. The appellants in the grounds of appeal have submitted the flow chart of manufacture of Borotik Boards as under:- 10. In the Central Excise Tariff Act, 1985 (CETA), the erstwhile heading 440300 (till 28.02.2005), corresponding to present 4407 reads as follows:- 44.03 Wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm. On the other hand, erstwhile chapter heading 4405 (upto 28.02.2005) corresponding to present CTH 4409, reads as follows:- 44.05 Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, moulded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed. 11. In the HSN Explanatory Notes for Chapter 44, the following notes are worth reproducing:- General Notes to Chapter 44 This chapter covers unmanufactured wood, semi-finished products of wood and in general, articles of wood. These products may be grouped broadly as follows : 1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the groove of another when assembled side by side. Rebated boards are those in which one or both edges have been cut to form a step. Chamfered boards are those of which one or more corners have been removed lengthwise at an angle to the face and the edge. Other common forms of timber covered by the heading include: (1) Round-edged boards (2) V-jointed wood (i.e. wood tongued and grooved with chamfered edges), including centre-V-jointed wood (i.e. with a V-shaped channel in the centre of the board and also usually tongued and grooved and sometimes chamfered at the edges). (3) Beaded wood (i.e., wood tongued and grooved with a simple bead between the edge and the tongue), including Centre beaded wood (i.e., wood tongued and grooved with a simple bead along the centre of the face). (4) Moulded wood (also known as moulding or beadings), ie., strips of wood shaped to various contours (obtained mechanically or by hand), such as are used for the manufacture of picture frames, decoration of walls, furniture, doors and other carpentry or joinery. (5) Rounded woods such as drawn woods, which are very thin rods, generally of round section, of a kind u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) HSN Notes in 44.09 also clarify that if wood has not been worked beyond planing, sanding or end-jointing, e.g. finger jointing, they fall in heading 44.07. 15. It therefore comes to the fore that sawn planks and boards of thickness exceeding 6 mm which have only been planed, finger-jointed, edge jointed by glueing and sanded thereafter, but being not worked beyond that, will necessarily find classification in CETA heading erstwhile 4403 till 27-02-2005 and 4407 thereafter. 16. However, in the impugned order dated 29.01.2009 in appeal No.E/290/2009, the lower appellate authority has taken the stand that 14. Xxxxxxxx As per the Harmonised System of Nomenclature Chapter 44.09 Heading covers timber, particularly in the form of boards, planks, etc., which, after sawing or squaring, has been continuously shaped along any of its edges or faces either to facilitate subsequent assembly. Further the Central Excise Tariff classifies wood continuously shaped along any of its edges or faces under 44.09. Here in the instant case the sawn scantlings of rubber are cut to the desired lengths, planed and the ends of the sawn and planed scantlings are then joined lengthwise in a finger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is meant by 'continuously shaped' wood, which the HSN Notes under (present) Heading 4409 have so very well clarified with examples thereof. In the event, we are of the considered opinion that the 'Borotik Boards' in question will only merit classification in erstwhile CETA Heading 4403.00 (4407.9900) w.e.f 28-02-2005). This being so, the impugned orders dated 03-01-2007 (relevant to Appeal E/296/2007) and 29-01-2009 (relevant to Appeal E/290/2009) ordering their classification under erstwhile CETA heading 4405 (present 4409.2090) cannot sustain, and will necessarily required to be set aside, which we hereby do. 18. Our view finds resonance the Tribunal's decision on the very same issue in the case of Rubco Haut Woods (P) Ltd., cited supra. The relevant portion of the said decision is reproduced as under:- 2. The respondents are manufacturers of furniture/furniture parts. The issue in the present appeals relate to the classification of Finger jointed Edge Glued Panels (FJEGP) and Laminated Square Beam (LSB). The claim of the respondent is classification under sub-heading 4403.00 which reads as : Wood, sawn or chipped lengthwise, sliced or pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts FJEGP and LSB which are lacquered and laminated are akin to the goods described under HSN heading 44.18 Builders joinery and carpentry . The said products are manufactured goods and are distinct from ordinary wood/timber. The heading 44.10 reads Articles wood not elsewhere specified . Article means a piece of goods or property , commodity any useful thing: or any article of commerce . These definitions obviously apply to the two products FJEGP and LSB. 3. Shri Anil Kumar, the learned JDR, appeared for Revenue and Ms. Pushya Sitaraman, the learned Advocate, appeared for the respondents. 4. While the JDR reiterated the grounds of appeal, the learned Advocate brought samples of the item and explained the manufacturing process. She has urged the following points :- (i) There is nothing in the HSN Notes to come to the conclusion that the processes such as edge-gluing or lamination would take the items out of the purview of 44.03. (ii) Something can be classified as Article of Wood only if it is a finished product made out of wood. (iii) In the case of Andaman Timber Industries, the same issue was raised in 1998 and the Assistant Commissioner, in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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