TMI Blog2018 (6) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramco Super Fine’ under CETA SH 3214.00 upto 27-02-2005 and 32149090 thereafter upheld and also holding that the said product is required to be assessed to duty under Section 4A of the Central Excise Act, 1944. Classification of Ramco Tile Fix - Department took the view that the product Ramco-Tile Fix appears to be classifiable under 3506.00 of CETA upto 27.02.2005 and 3506.9999 thereafter - Held that:- The product appears to be a cement-based mastic having addition of polymers to lend adhesive properties which would possibly bring it within the ambit of CETA SH 32.14. However, since there is no such proposal made in the SCN and since the attempt of the department to classify it under CETA SH 35.06 has not found favour with us, we would only set aside that part of the impugned order which has ordered classification of “Ramco Tile Fix” under CETA SH 3506.00 upto 27.02.2005 and 3506.99.99 from 28.2.2005. Classification of Ramco Super Plaster–Plastering Compound - Department took the view that the product Ramco Super Plaster–Plastering Compound is classifiable under CETA 25232990 - Held that:- Evidently, not only is Ramco Super Plaster predominantly consisting of cement upto ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assifiable under CETA 3214.00 upto 27.02.2015 and 3214.9090 thereafter; that the product Ramco-Tile Fix appears to be classifiable under 3506.00 of CETA upto 27.02.2005 and 3506.9999 thereafter; that the product Ramco Super Plaster Plastering Compound is classifiable under CETA 25232990. 2.3 Show cause notices were issued to the appellants proposing demand of differential duty and imposition of penalties which culminated in the impugned Orders-in-Original and resultant appeals to this forum as tabulated below :- Appellant Appeal No. SCN date OIO No. and date Period covered Duty involved (Rs.) Penalty imposed (Rs.) Madras Cements Ltd. E/475/2010 07.09.2009 7/2010 dt. 29.04.2010 August 04 to March 09 2,00,46,367 2,00,46,367 Madras Cements Ltd. E/115/2011 29.04.2010 31/2010 dt. 23.12.2010 April 09 to Dec 09 66,71,070 Nil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute was raised by the Internal Audit party in March 2009. The samples of the three impugned products were drawn for test by the Customs Laboratory. The test result of samples of Customs Laboratory was not made available to them, however proceedings were initiated by SCN dt. 7.9.2009 invoking extended time limit. Appellants were given copies of the test memo results only on 17.3.2010, after the date of personal hearing on 27.1.2010 and after making request on 19.1.2010. iv) Appellants had furnished material composition of the three disputed items to the department vide a letter dt. 12.12.2009; hence SCN dt. 7.7.2009 and OIO dt. 29.4.2010 (in respect of Appeal No.E/475/2010) are hit by time bar for the period prior to 1.8.2008. v) Wall Putty falling under CETH 3214 are basically puttys normally used on Dry Plastered Surfaces. Appellants product Ramco Super Fine is used more to do plastering which gives a plastered surface. Putty is normally used on dry surfaces. However, Ramco Super Fine is meant for use both on dry and wet surfaces and the product literature contained reference to putty only to convey that the product gives the result of a putty which is normally applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, the said mixtures would be classifiable under sub heading 382450.50.0050 HTSUS. Similarly the same customs authorities, USA has clarified that Non refractory concrete dry mix consisting of 55% lime stone and 45% cement would be classifiable under sub-heading 382450.50.0050 HTSUS. x) The impugned order of Commissioner with regard to reclassification, assessment of duty under Section 4A for Ramco Super Fine, Ramco Tile Fix in the case of Ramco Super Plaster Plastering compound under CETH SH 2324 as other cement ₹ 400/600 per MT s is not correct and therefore, the impugned orders demanding differential duty and imposition of penalty in the case of OIO dated 29.04.2010, are required to be set aside. xi) Ld. Consultant relied on the following case laws : 1) CCE, Surat II Vs Nirmala Dye Chem 2007 (207) ELT 161 (SC) 2) Vicco Laboratories Vs CCE Goa Thane 2007 (218) ELT 129 (Tri.-Mumbai) 3) CCE Mumbai Vs Narendrakumar Co 2008 (232) ELT 866 (Tri.-Mumbai) 4) Gail India Ltd. Vs CCE Kanpur 2015 (323) ELT 186 (Tri.-Delhi) 5) Soma Papers Industries Ltd. Vs CCE Nashik 2015 (326) ELT 339 (Tri.-Mumbai) 6) CCE Mumbai IV Vs Brahans Rubber Pvt. Ltd. 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of Aluminium, Calcium, Magnesium and Iron in traces. However, this report is very vague and not helpful in determining the classification. (iv) The Technical Opinion dated 11-10-2006 proffered by CSIR-National Metallurgical Laboratory, on the basis of samples sent by the appellants themselves, confirm the product composition as claimed by the latter. In page 13 of the Report, CSIR infers that Ramco Super Fine is a non-refractory product. However, in page 12, it is also conceded by CSIR that the product will be suitable for non-structural purpose in the construction industry; that it can be used for inside and outside applications on walls and ceilings and plastered surfaces. (v) We find that the appellants claimed classification under CETA heading SH 3824 on the ground that impugned product is a non-refractory mortar. However, on perusal of the HSN heading description for 3824, submitted by the appellant themselves, in Paper Book-4, page 20, it is evident that, the heading covers prepared binders for foundry moulds or cores ; chemical products and preparations of the chemical or allied industries not elsewhere specified or included and residual products of the chemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compounds and other mastics; painters fillings; non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like The corresponding heading descriptions in chapter SH 32.14 of the CETA, during the period of dispute are as follows :- (Upto 27-02-2005) 32.14 Glaziers putty, grafting putty, resin cements, caulking compounds and other mastics; painters fillings; non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like, but excluding primers (heading No.32.08), varnishes (heading No.32.09) (After 27-02-2005) 3214 Glaziers putty, grafting putty, resin cements, caulking compounds and other mastics; painters fillings; non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like (ix) As clarified in the HSN, the products of heading 32.14 are preparations of widely differing composition which are essentially characterised by the uses to which they are put; these preparations are usually put up in a more or less pasty form and in general they harden after application; ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way to assist in arriving at the classification. (v) The product literature has been filed in page 35-39 of Paper Book-3. Ramco Tile Fix is projected as a polymer modified, cement based and ready to use tile adhesive; the easiest, fastest and most convenient way to fix your tiles; protects the tile and ensures a long life for your floor surfaces; longer life, excellent bond strength, good workability, better open time, easy to use, anti sagging and no pre-soaking of tiles . The brochure also advises usage of a notch trowel and also to wear filter mask and protective clothing due to cementious nature of Tile Mix. We, therefore, note that the impugned product is only sold as a cement based product with polymer additives which lend adhesive properties. It is definitely not marketed as a prepared glue or a prepared adhesive. Polymer adhesive content in the product is only around 3 to 4% with the remainder being comprised of OPC cement and river sand. Surely then, such a predominantly cement based product with miniscule percentage of polymer additive, cannot then be straitjacketed as an adhesive wholly or predominantly based on polymers of headings 3901 to 3913 or on rubber or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... improve crack resistance; has higher fineness and lower density than cement and therefore gives better finish and higher coverage ; used in the same way as cement ; the product can be used for all non structural applications‛. Evidently, not only is Ramco Super Plaster predominantly consisting of cement upto around 75%, but also, the product is projected as a superior substitute to cement for all plaster and mortar applications. No doubt the product may have better qualities than plain cement. Nonetheless there is no gainsaying that it is still predominantly cement only upto almost 75%. Further even the literature states that it is used the same way cement is used. (vi) We are then not able to find any infirmity with the conclusions of the adjudicating authority that Ramco Super Plaster is nothing but a value added cement meriting classification as Other Cement in CETA sub heading 2523 2990. Hence that part of the impugned order confirming classification of Ramco Super Plaster Plastering Compound under CETA sub heading 2523 2990. 7. The appellants have also taken recourse to the rulings of Harmonized Tariff Schedule of the United Station (HTSUS) for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute has arisen out of a difference in interpretation vis-a-vis the classification of the new products brought out by the appellant for specific usages. This being the case, we are of the considered opinion that there cannot be any allegation that appellants have evaded duty by way of fraud or mis-interpretation or misstatement or suppression of facts. In the circumstances, we hold that no penalty can be imposable in this case under Section 11AC. Accordingly, that part of the impugned orders imposing penalty under Section 11AC of the Central Excise Act, 1944 cannot sustain and is therefore set aside. 10. To sum up, (1) That portion of the impugned order ordering classification of the product Ramco Super Fine under CETA sub heading 3214.00 upto 27.02.2005 and under CETA sub heading 3214.90.90 thereafter and assessment to duty under Section 4A of the Central Excise is upheld. (2) That part of the impugned order classifying Ramco Tile Fix High Performance Tile Adhesive under CETA sub heading 3506.00 upto 27.02.2005 and under CETA sub heading 3506.99.99 is set aside. (3) That part of the order classifying the product Ramco Super Plaster Plastering Compound under CET ..... X X X X Extracts X X X X X X X X Extracts X X X X
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