TMI Blog2000 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... tiles. Glazed tiles are classifiable under sub-heading 6906.10 and others under sub-heading 6906.90 and bore a higher rate of duty 30% as against 25% ad valorem. The Department therefore issued a notice dated 20-10-1998 proposing to recover the differential duty on the goods cleared between 30-10-1995 to 31-8-1998. Penalty under Section 11A was also proposed, as was confiscation of land, building, plant, etc. used in the manufacture of these goods. 3.The assessee admitted in the proceedings before the Commissioner classification initially claimed and approved under heading 6901.90 was incorrect, claiming that tariff classification should be under heading 69.05. It otherwise contested the notice raising various contentions with regard to the merits of the assessment, applicability of the extended period and the liability to penalty. In the order which is impugned, in this appeal he has confirmed the demand for duty holding that the extended period applicable, imposed penalty equal to the duty amount of Rs. 7.40 crores, and levied redemption fine of Rs. 5 lakhs in lieu of confiscation of plant and machinery. 4.There is no dispute that the goods are classifiable under Heading 69. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contained in them on there being subjected to the process in the appellant's factory, or whether, for the tiles to be glazed. A glaze is to be applied to the tiles which have already been fired or baked. It is the department's case central to it, that by the process by which the tiles themselves came into existence, they were also glazed, i.e., they imported as glazed tiles without being specific subject to the process of glazed. 7.We shall now consider which the advocate for the appellant cites in support of its contention that glaze must be applied on to ceramic tiles by a specific process and that the term 'glaze' used as noun or as a verb refers to the material applied on the surface of such ceramic product and to the process of application of that material respectively. He cites The McGraw Hill Encyclopedia of Science Technology : "Glazing' is defined as the application of finely ground glass, or glass forming materials, or a mixture of both, to a ceramic body and heating (firing) to a temperature where the material or materials melt, forming a coating of glass on the surface of the ware". Extracts from the book Industrial Ceramic by Felix Singer and Sonja S Singer publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s less alumina, contains calcium phosphate (e.g. in the form of bone ash), a translucent body is thus obtained a lower firing temperature then with hard porcelain. The glaze is normally applied by further firing at a lower temperature, thus permitting a greater range of underlaze decoration." 9.The learned advocate for the department contends that one of the dictionary meaning of the terms 'glazed' refers to the property of having glossy finish. He refers to the Commissioner's order relying on the definition in the Oxford Dictionary and Webster's Dictionary. He contends that in addition that the Indian Standard Specification themselves support this view. Glazed tiles are defined in IS 2781 of 1975 which speaks of "tiles with a 'fused' impervious facial finish composed of ceramic materials, fused into the body of the tile which may be a nonvitreous, semi vitreous, vitreous, or impervious body." This description, it is contended fits the definition of the tiles manufactured by the appellant. He lays great emphasis upon the fact that the technology employed by the appellant is the latest, and says that by this latest technology it may be possible to have such a fused impervious fini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usive guide, as it gives all the different shades of meaning." The case before us is a classic example of the pit falls of relying upon the dictionary meaning of term rather than its trade or dictionary meaning. 12.The Indian Standard specifications for ceramics articles and the description of a glazed tile which are reproduced above make it clear that the glaze is necessarily a coating on the surface of the ceramic article and that the glaze must be fused with the body of the tile. Thus glazed tile must have melted impervious melted in to the body of the tile. The surface finish of glaze cannot be melted on the body of the tile unless the tile has come into existence; however, the brief period of time that may be elapsed between the coming into existence of the tile and the fusion on it of the glaze. There must be a fusion of the glaze, distinct from the manufacture of the tiles, separated by an interval of time. In other words the definition in the Indian Standard specifications and the HSN Notes are inconsistent with the glaze coming into existence simultaneously with the ceramic article being formed complete. The application of the glaze must necessarily take place after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the description of the goods in the tariff heading. If a product can be manufactured by more than one method, it would still continue to be classifiable under the same heading irrespective of the method of manufacture. There is however a significant exception. That is when the process of manufacture itself is specified in a tariff heading or the process of manufacture is so integrally connected with the product, then the process determining the nature of the product. For example for a fabric to be classifiable under heading 5209.21, 5309.22, 5209.23 as other woven fabric of cotton, it must necessarily be subjected to the process of bleaching, dying and printing respectively. The fact that the fabric resembles a dyed fabric would not itself be sufficient to classify it under this heading. If the colour was obtained by a process other than dyeing of the fabric for example, by dyeing of the yarn used to weave it, it would not be a dyed fabric classifiable under that heading. In other words where the product is specified in the tariff in such a manner that it cannot be obtained except by following a particular method of processing or manufacture, that method of processing or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a progressive reduction in body porosity while acting to bond the remaining body constituents. As vitrification increases the strength of the body and its resistance to chipping normally increases until a stage of glassines occurs". This is in line with the definition in the Indian Standard specifications. Vitrification thus is a process by which the porosity of a ceramic article substance is reduced. 19.We have already noted that the IS specification says that glazing is a process applied over the surface of a ceramic body. Vitrification therefore is a process separate and distinct from glazing. It is necessarily to note at this point that the substances by means of which vitrification is achieved and glazing take place, are essentially the same. We have already noted that glazing is the application of melted glass. Vitrification is a process which require the formation of glass, this being the substance bring about the reduction in body porosity. Therefore the fact that the goods manufactured by the appellant contain a significant proportion of feldspar and quartz shows that the tiles manufactured, by it were required to be vitrified. It does not result in the inevitable conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are subjected to polishing. The gloss surface of the tiles is obtained by polishing and not by glazing. Glazing and polishing are distinct from each other. The mere fact of polishing does not lead to the conclusion that the tiles are glazing. The correctness of this point has to be accepted. In the manufacture of the appellant's tiles, there is no coating of glaze materials applied on the surface of the body of the tiles. The appellant's tiles are subjected to the process of mechanical polishing. The concepts of glazing and polishing are distinct and different from each other and consequently polished tiles cannot be equated with glazed tiles. The book, 'Fine Porcelain Stoneware Tiles' by Giovanni Biffi explains polishing of tiles from page 195 onwards. It is clear from the Book, that ceramic tiles are polished mechanically with help of diamond rollers and abrasives. This is the same manner in which the appellant polishes the tiles manufactured by it. The same book at page 135 refers elsewhere to glazing of tiles. It thus distinguishes between polishing and glazing as two different separate processes. 23.Glazing, then is an application of the melted glass (and other substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence between the two, he declined to comment. Shantilal Patel stated that the tiles manufactured by the appellant were glazed because of this glossy surface and finishing. He recognized to the matte finished tiles of another manufacturer as mat unglazed. He was shown samples of the product manufactured by the appellant and glazed tiles manufactured by some other and said that they were both glazed tiles. The difference, he says was that the conventional tiles, manufactured by another person have two layers whereas the first of the appellant has a single layer. 27.It is clear from these replies that these persons have based their views upon whether the tiles were glazed or not only by the presence of a gloss or shine on them. As we have noted, glazed tiles need not always have a glossy finish. They could also have a matte or dull finish. Their opinions therefore are by no means conclusive of the tiles manufactured by the appellant having been glazed tiles. 28.In addition it is difficult for us to accept that a builder or an architect is competent to opine upon whether a particular process has or has not taken place on a tile. The builder or architect, no doubt, would be familia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to cross-examination. However he was not produced for cross-examination despite being asked. 30.On merits we, therefore, hold that the goods manufactured by the appellant were not glazed. 31.The notice which was issued to the appellant is dated 20-10-1998 and proposed recovery of duty for the tiles cleared between October, 1995 and August, 1998. It therefore invoked the extended period contained in the proviso under sub-section (1) of section 11A. The notice alleged mis-declaration, willful mis-statement and suppression of facts with intend to evade duty. It is alleged suppression of the fact that tiles were glazed, mis-statement by describing the glazed tiles as polished tiles or vitrified tiles. It alleged suppression of the raw materials used in the manufacture of tiles and in describing the manufacturing process. The Commissioner has confirmed die applicability of the extended period. He has relied for this view upon two circumstances. The first is that the appellant had misled the National Test House, Alipore with regard to the tiles manufactured by it. The certificate issued by the National Test House which described the goods sent by the appellant as glazed tiles was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to decide whether the tiles are glazed or not. This is not the case. In our view no doubt the manufacturing process uses a considerable technical term. However it has in our view described the various process that the materials undergo. The advocate for the department was at pain to emphasis this write up of the manufacturing process did not disclose the details of the raw materials that are used. This was not denied by the advocate for the appellant, but however says that the details of the raw materials had earlier been submitted along with the application for registration dated 16-9-1994, the process of manufacture and the list of raw material. Further, the appellant submitted between August, 1995 and April, 1997 six classification lists to the department, which the goods were described as unglazed vitrified ceramic tiles polished and unpolished. The advocate for the appellant could not controvert these facts to say to failure to furnish the details of raw material along with the classification list attracts the extended period for which he cites the decision of the Tribunal in Primela Sanitary Product v. CCE - 1999 (112) E.L.T. 411. 34.It is clear that even before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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