ORDER
V.P. Gulati, Vice President
1. The issue in the appeal relates to classification of the goods which are described as kitchen table, work tables, service counters and SS stand. These are sought to be classified by the Revenue under Heading 94.03 as against Heading 73.23 claimed by the asses-see. The learned CCE(A) classified the goods under Heading 73.23 as against 94.03 held by the original authority. For convenience of reference, the competing items are reproduced below:
“94.03 Other furniture and parts thereof.
73.23 Table, kitchen or other household articles and parts thereof, of iron or
steel wool, pot scourers and scouring or polishing pads, gloves and the
like of iron or steel.”
2. The CCE(A) has also referred in this connection to HSN notes under which the scope of tariff Heading 73.23 has been elaborated. The note as taken note of the CCE(A) is reproduced below :
“Table, kitchen or other household articles and parts thereof, or iron or steel, iron or steel wool, pot scouring and scouring or polishing pads, gloves and the like if iron or steel.”
The lower appellate authority has taken note of the decision of the Tribunal in the context of the erstwhile item No. 40 as set in this regard as under :
“The Hon’ble Tribunal in the case of Tata Engg. and Locomotive Co. Ltd. v. C.C.E. reported in 1988 (37) E.L.T. 432 (Tribunal) ruled that steel furniture-steel cabinets, steel tables, steel benches, steel racks and steel tool holders not meant for use or decoration in dwelling houses, place of business or public or private buildings but specially designed for use in works, and heavier in weight, made of thicker metal and costlier, not qualifying to be classified as steel furniture under item 40 of the CET. The ratio of the Hon’ble Tribunal’s decision is correctly applicable to the facts of the present case.
The Hon’ble Tribunal in Steel Authority of India Ltd. v. C.C.E. reported in 1988 (37) E.L.T. 375 (Tribunal) also ruled that such goods are not commonly known as “furniture” as the same are not bought and sold in the market as “furniture . The said ruling of the Hon’ble Tribunal is also applicable to the facts of the present case. In the present case, the goods involved are:
(1) kitchen tables, (2) work tables, (3) service counters, and (4) SS Stand with undershelf. They are not popularly known as “furniture”. Commercially also, such goods are not bought and sold as furniture. The various affidavits filed and the various purchase orders and invoice available on record vouchsafe the fact that the disputed goods are not furniture as commonly known and understood. Neither are they known commercially also as furniture. Therefore, the classification of the disputed goods under the tariff sub-heading 9403 is not sustainable in law. Such goods, as has been discussed in the preceding paras, are rightly classifiable under sub-heading 7323. Even the HSN, as stated in the preceding paras also supports the classification of the disputed goods under sub-heading 7323.”
and has come to the conclusion that the goods will fall under heading 73.23.
3. The Revenue has urged as under in the grounds of appeal:
“The Commissioner of Customs and Central Excise (Appeals), Bangalore has failed to note that as per Note 2 to Chapter 94 articles referred to in heading No. 94.03 are to be classified if they are designed for placing on the floor or ground which would clearly apply to the impugned items whereas Chapter 73.23 covers articles for tables, kitchen or other household articles of Iron and Steel. The explanatory notes to the HSN at page 1578 extends the coverage of heading 94.03 to “furniture for special use” which also have application in hotels and private dwellings.
3. The Commissioner of Customs and Central Excise (Appeals), Bangalore has erred in relying on the decision of the Hon’ble Tribunal in the case of Steel Authority of India Ltd. v. Collector of Central Excise reported in 1988 (37) E.L.T. 375 wherein the decision was primarily with regard to classification of cabinets, steel tables, steel benches, racks and steel tool holders made for steel plants and the same would not be considered as an article of furniture and therefore the Tribunal’s decision is not applicable in the instant case as the impugned items are kitchen articles.
3. The DR for the department reiterated the grounds of appeal.
4. The Ld. Chartered Accountant appearing for the respondents adopted the reasoning of the learned lower appellate authority and has pleaded that the burden is on the department to show that the goods do not fall under Heading 94.23. He has also referred us to the decision of the Tribunal in the case of TELCO v. C.C.E. reported in 1988 (37) E.L.T. 432.
5. We have considered the pleas made by both the sides. At the outset we would like to analyse the scope of the tariff heading 73.23 vis-a-vis 94.03 so far as the goods in question are concerned. Tariff 73.23 as it is worded and in respect of which elaboration is available under HSN clearly shows that the articles as are covered under this heading are such of those which are used in the kitchen or for the table use or are in the nature of household articles. Extract from this HSN is reproduced below:
(A) TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND
PARTS THEREOF
This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels, restaurants, boarding-houses, hospitals, canteens, barracks, etc.
These articles may be cast, or of iron or steel sheet, plate, hoop, strip, wire, wire grill, wire cloth, etc., and may be manufactured by any process (moulding, forging, punching, stamping, etc.). They may be fitted with lids, handles or other parts or accessories of other materials provided that they retain the character of iron or steel articles.
The group includes:
(1) Articles for kitchen use such as saucepans; steamers; pressure cookers; preserving pans; stew pans; casseroles; fish kettles; basins; frying pans; roasting or baking dishes and plates; gridirons; ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins; tea caddies; sugar tins; etc.); salad washers; kitchen type capacity measures; plate racks: funnels.
(2) Articles for table use such as trays; dishes; plates; soup or vegetable dishes; sauce tureens; sugar basins; butter dishes; milk or cream jugs; hors-d’oeuvres dishes; coffee pots and percolators [but not including domestic percolators provided with a heat source (heading 73.21); tea pots; cups; mugs; tumblers; egg-cups; finger bowls; bread or fruit dishes and baskets; tea pot or similar stands; tea-strainers; cruets; knife-rests; wine cooling buckets; etc., wine pouring cradles; serviette rings;, table cloth clips.
(3) Other household articles such as wash coppers and boilers; dustbins; buckets, coal scuttles and hods; watering-cans; ash-trays; hot water bottles; bottle baskets; movable boot-scrapers; stands for flat irons; baskets for laundry; fruit, vegetables; etc.; letter-boxes; clothes-hangers; shoe trees; luncheon boxes.
The group also includes iron or steel parts of the articles listed above; such as lids; grips; handles; separating compartments for pressure cookers, etc.
It has not been shown to us nor the learned lower appellate authority has brought out as to how the articles in question could be taken to be answering to the range of articles as covered by the HSN. Central Excise Tariff is designed on the scheme of HSN and the Hon’ble Supreme Court in the case of Wood Craft Products v. C.C.E. reported in 1995 (77) E.L.T. 23 has held that it would be in order to rely on HSN in case of any doubt for arriving at any conclusion. Para 18 of the judgment reproduced below for convenience of reference :
“18. We are of the view that the Tribunal as well as the High Court fell into error of overlooking the fact that the structure of the Central Excise tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI glossary, which has a different purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression “similar laminated wood” in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention”.
In our view therefore, the lower appellate authority could not have assessed the goods under Heading 73.23. The scope of tariff Heading 94.03 as set out under the HSN is as under:
94.03 OTHER FURNITURE AND PARTS THEREOF
9403.10 - Metal furniture of a kind used in offices
9403.20 - Other metal furniture
9403.30 - Wooden furniture of a kind used in offices
9403.40 - Wooden furniture of a kind used in the kitchen
9403.50 - Wooden furniture of a kind used in the bedroom
9403.60 - Other wooden furniture
9403.70 - Furniture of plastics
9403.80 - Furniture of other materials, including cane, osier,
bamboo or similar materials
9403.90 - Parts
The scope of coverage as set out in the notes is as under :-
This heading covers furniture and parts thereof, not covered by the previous headings. It includes furniture for general use (e.g. cupboards, show-cases, tables, telephone stands, writing-desks, escritoires, book-cases, and other shelved furniture, etc.) and also furniture for special uses.
The heading includes furnitures for:
(1) Private dwellings, hotels, etc., such as: cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressing tables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; side-boards, dressers, cupboards; food-safes; bedside tables; beds (including wardrobe beds, camp-beds, folding beds, cots, etc.); needlework tables; foot-stools, fire screens; draught-screens; pedestal ashtrays; music cabinets, music stands or desks; play-pens; serving trolleys (whether or not fitted with a hot plate).
(2) Offices, such as: clothes lockers, filing cabinets, filing trolleys, card index files, etc.
(3) Schools, such as: school-desks, lecturers’ desks, easels (for blackboards, etc.)
(4) Churches, such as: altars, confessional boxes, pulpits, communion benches, lecterns, etc.)
(5) Shops, stores, workshops, etc., such as: counters; dress racks; shelving units; compartment or drawer cupboards; cupboards for tools, etc.; special furniture (with cases or drawers) for printing-works.
(6) Laboratories or technical offices, such as: microscope tables; laboratory benches (whether or not with glass cases, gas nozzles and tap fittings, etc.); fume-cupboards; unequipped drawing tables.
The heading does not include:
(a) Travelling chests, trunks and the like, not having the character of furniture (heading 42.02).
(b) Ladders and steps, trestles, carpenters’ benches and the like not having the character of furniture; these are classified according to their constituent material (headings 44.21, 73.26, etc.).
(c) Builders’ fittings (e.g. frames, doors and shelves) for cupboards, etc. to be built into walls (heading 44.18 if of wood).
(d) Waste-paper baskets (of plastics, heading 39.26; of basket or wickerwork, heading 46.02; of base metal, headings 73.26, 74.19, etc.).
(e) Hammocks (generally heading 56.08 or 63.06).
(f) Mirrors designed for standing on the ground, such as cheval-glasses, swing-mirrors for shoe-shops, tailors, etc. (heading 70.09).
(g) Armoured or reinforced safes (heading 83.03). On the other hand, containers specially designed to resist fire, impact and crushing and whose walls in particular do not offer any serious resistance to attempts at breaking them open by drilling or cutting are classified in this heading.
(h) Refrigerators, ice-cream machines, etc. (i.e., cabinets, etc., having the character of furniture but also equipped either with a refrigerating unit or with an evaporator of a refrigerating unit, or designed to receive such equipment) (heading 84.18) [(see Note (1)(e) to this Chapter)]. However, ice-boxes, ice-chests and the like, and also insulated cabinets not equipped or designed to contain an active refrigerating element but insulated simply by glass fibre, cork, wool, etc., remain classified in this heading.
(ij) Furniture specially designed for containing or providing a stand for sewing machines, whether or not it has a subsidiary use as furniture when the machine is not in use, protective covers, drawers, extensions and other component parts of such furniture (heading 84.52).
(k) Furniture specially designed as part of apparatus of heading 85.18 (heading 85.18) or of headings 85.19 to 85.21 (heading 85.22) or of headings 85.25 to 85.28 (heading 85.29).
(1) Drawing tables fitted with instruments such as pantographs (heading 90.17).
(m) Dentists’ spittoons (heading 90.18).
(n) Mattress supports (heading 94.04).
(o) Standard lamps and other lamps and lighting fittings (heading 94.05).
(p) Billiard tables, or other furniture specially constructed for games, of heading 95.04, and tables for conjuring tricks, of heading 95.05.;
It is seen that articles which are set out herein are also used in the hotels and cover among other things food safes and also counter cup-boards for tools and specialised items of furniture. Even serving trolleys whether or not fitted with a hot plate are also covered. Among the excluded items none of the items as are set out above are covered. Tariff heading 94.03 as above, covers even furniture and parts thereof. It is a residuary item and can be taken to cover within its ambit such of those items which are capable of being placed on the ground even though specialised in nature for reason of its use being akin to the items of furniture and these would be covered under this heading. Taking into consideration the range of items as set out above it can be safely held that these items could be falling under heading 94.03. The case law cited in the context of erstwhile item No. 40 is not relevant. The Hon’ble Supreme Court has held in the case of Wood Craft Products Ltd. that in case of controversy regarding the scope of tariff heading reliance can be placed on the HSN and the assessment can be done based on the chapter notes as given in the HSN. In the above view of the matter, the goods are rightly classifiable under heading 94.03 as held by the original authority. The appeal of the Revenue is therefore allowed in the above terms.