ORDER
G.R. Sharma, Member (T)
1. These two appeals are directed against the order of the Collector (Appeals). The Collector (Appeals) in his order had held that tanks and vessels are not eligible for exemption under Notification 132/86 with effect from 1-3-86 and also gratings fall under Chapter sub-Heading 3926.90 and scrubbers would fall under Tariff Heading 84.21; and also that Notification 132/86 has been superseded by Notification 53/88, dated 1-3-88 and after 1-3-88 no exemption for the goods falling under Tariff Heading 39.22 to 39.25 will be available.
3. The facts of the case in brief are that the appellants are engaged in the manufacture of a number of items; that the products manufactured by the appellants are purchased by the industrial consumers for storing of chemicals, platforms in industrial/chemical plants; that the said goods are neither purchased by dealers nor they are used as builders ware. The appellants submitted a classification list effective from 2-4-86 and another classification list effective from 1-4-87 in this classification list the appellants classified pipes and fittings (such as Elbows, Tees, Reducers, Stubend, flanges), Ducting fittings (such as Elbows, Tees, Stubends, Damper, Canopy and Hood) and Chimney and Tower under Chapter Heading 39.17 and claimed exemption under Serial number 24(ii) of Notification 132/86, dated 1-3-1986. The appellants claimed classification of Tanks, Vessels, Scrubbers and Gratings under Chapter Heading 39.26 and claimed exemption against Serial Number 38(i) of Notification No. 132/86, dated 1-3-1986.
4. The Assistant Collector approved the classification list about Tubes, Pipes, Hose and Fittings under Chapter Heading 39.17. He also classified ducting, chimney, tower, canopy and hood under Chapter Heading 39.17. He classified the tanks, scrubbers and gratings under Chapter sub-heading 3926.90. Against this order of the Assistant Collector the appellants went in appeal to Collector (Appeals) and the Collector (Appeals) passed the orders as indicated in the preceding paragraph.
5. Shri A.V. Phadnis, learned Advocate and Shri P.U. Patankar, learned Advocate appearing for the appellants submitted that Chapter Note 8 in Chapter 39 reads “for the purpose of Heading 39.17, the expression tubes, pipes and hoses means hollow products, whether semi-manufactures or finished products, of a kind generally used for conveying, conducting or distributing gases or liquid.” As pipes are used for conducting, conveying and distributing liquid and chimneys are used for conducting, conveying or distributing gases; both are meant for conducting, conveying and distributing liquid and ducting for gases; that ducting as a pipe falls under Chapter Heading 39.17 of the said CETA, 1985.
5. On the question of chimneys and towers the learned Counsel submitted that chimneys are pipes used for conducting gases to the atmosphere and hence chimneys and towers fall under Chapter Heading 39.17 of CETA, 1985.
6. In respect of canopy and hood the learned Counsel submitted that these are fittings of chimneys or towers and consequently they are pipes fittings and hence fall under Chapter Heading 39.17.
7. As against the above the department had alleged that scrubbers would fall under 84.21 for part of filtering and purifying hoses for gases; that gratings would fall under Chapter heading 39.25.
8. The learned Counsel for the appellants submitted that Chapter 84 of the CETA, 1985 relates to nuclear reactor, boiler, machinery and mechanical appliances and parts thereof; that the products namely ducting, chimney, tower, canopy and hood are neither nuclear reactor nor boiler nor machinery nor mechanical appliances nor parts thereof; that Chapter Heading 39.17 of the CETA, 1985 covers tubes, pipes hoses and fittings therefor (for example joints, elbows, flanges), of plastics; that scrubbers are actually tanks which are shell for the scrubbers; that it is only tanks which is manufactured and sold by the appellants to the customers; that the customer according to his own needs and conveniences, affixes several devices in the said tank which is manufactured and cleared by the appellants from their premises; that it is only after the devices are affixed in the tank that the tanks gets converted into a scrubber at the buyers end; at the time of their clearance from the appellant’s factory, the tanks which are described as scrubbers are not capable of functioning as scrubbers as they do not possess the essential characteristics of a scrubber. The learned Counsel for the appellants submitted that articles described as tanks, vessels and scrubbers are all tanks and were classifiable under sub-heading 3926.90; that gratings are articles of plastics; they are used as platforms in chemical plants and that they are classifiable under Chapter sub-heading 3926.90.
9. The learned Counsel submitted that the appellants submitted a fresh classification list classifying pipes and fittings (such as elbows, tees, reducers, stubends/flanges), ducting fittings (such as elbows, tees, stubends/dampers, canopy and hoods) and chimney and tower under Chapter Heading 39.17 and claimed benefit of exemption of Notification 132/86, dated 1-3-86 in Serial No. 24 (ii); that the appellants classified tanks, vessels, scrubbers and gratings under Chapter sub-heading 3926.90 and claimed the benefit of exemption of Notification No. 132/86, dated 1-3-86. The Collector of Central Excise (Appeals) had held that the products pipes and fittings, ducting and fittings and chimney and tower fall under Chapter Heading 39.17 and duty payable thereon is nil under Notification No. 132/86; that the Collector (Appeals) held that tanks fall under Chapter Heading 39.25 and eligible for the benefit of exemption of Notification 132/86, dated 1-3-86; from 29-2-88 to 1-3-88 the appellants were not entitled to the benefit of exemption under Notification 132/86. The Collector (Appeals) also held that scrubbers fell under Chapter Heading 84.51 and they are not eligible for exemption under Notification 132/86; that gratings fell under Heading 39.25 and were exempt from payment of duty till 29-2-1988 and that they were not entitled to benefit of exemption under Notification 132/86 from 1-3-86. The only dispute remains about classification of the tanks, vessels, scrubbers and gratings and eligibility of the benefit under Notification 132/86.
10. Elaborating his argument on the identity of the product in dispute the learned Counsel submitted that scrubber is nothing but tank; that if the customer desired to convert said tank into scrubber necessary devices are affixed in the tanks manufactured by the appellants; that at the time of clearance of the item described as scrubber is nothing but tank; that tank is finished or manufactured product; that tank is as such known and recognised by the trade and the Schedule to Central Excise Tariff Act, 1985; that simply because the customer wants to use tank as scrubber it cannot be classified as scrubber or part of scrubber; that during the year 1986-87 tanks, vessels and scrubbers manufactured by the appellants were not covered under any item under Chapter Heading 39.01 to 39.21 but they fall under Chapter Heading 39.22, under the residuary subheading 3922.90. The learned Counsel submitted that tank and vessels manufactured by them are not builders ware he submitted that under Chapter Heading 39.25 only builders ware of plastic which are not specified elsewhere or covered. He submitted that tanks manufactured by them are not known in the trade as builders ware. The learned Counsel submitted that tanks, vessels and scrubbers manufactured by them are used for industrial purposes and they therefore are not classifiable under Chapter Heading 39.25; that the tanks and vessels manufactured by them are classifiable appropriately under Chapter Heading 39.26 as other articles of plastics and articles of other materials of Heading No. 39.01 to 39.14.
11. In so far as gratings are concerned the learned Counsel submitted that gratings cannot be classified under Chapter Heading 29.25 as they are not builders ware; that gratings are used in platforms in chemical plants and therefore they cannot fall under Chapter Heading 39.25.
12. In view of the submissions made above the learned Counsel submitted that the benefit under Notification No. 132/86, dated 1-3-86 was available to the appellants.
13. Shri J.M. Sharma, learned JDR submitted that order of the Collector (Appeals) is well reasoned and covers specifically the products manufactured by them and should be classified as held by him.
14. The learned Counsel in support of his contention cited and relied upon the decision as under :-
1. Jyoti Plastic v. Collector of Customs -1993 (64) E.L.T. 291 (Tribunal).
In support of his contention that the goods in their case were plastic articles and that Chapter 39 deals with plastic articles thereof since this heading was specific one and therefore scrubbers should fall under this heading and not under Chapter Heading 84. The learned Counsel submitted that the Apex Court in the case of Fenner (India) Limited v. Collector of Central Excise, Madras reported in 1995 (77) E.L.T. 8 (S.C.) had held that titles of section and chapter are provided for ease of reference only for legal purpose classification shall be determined according to the terms of the headings and any relative section or Chapter Notes and provided such Headings or Chapter Notes do not otherwise require according to the previsions contained, that this position is very clear from interpretative Rule 1. He submitted that articles of plastic are classifiable under chapter Heading 39; that Chapter Heading 39 is very specific and therefore classifying scrubbers; articles of plastics under Chapter Heading 84 does not at all arise. The Tribunal in the case of Heliplastics Limited reported in 1993 (63) E.L.T. 178 (T) had held that for classifying the goods under Chapter sub-heading 3925.10 it was essential to establish that they were builders ware; that no evidence was brought by the Excise authorities on record to show that chemical tanks and reaction vessels manufactured by them were builders ware; in that case it was held since reservoirs and tanks were most commonly required in building activity for storage of water in overhead and other tanks, it follows from Heading 39.25 itself that this entry is primarily meant to cover such reservoirs and tanks. The appellants’ claim that the spiral tanks manufactured by them are basically intended for storage of chemicals etc. and, are therefore, corrosion resistant, non-toxic and non-absorbent in nature. In that case the Tribunal had held that in the absence of any thorough investigation classification under sub-heading 3926.90 would be appropriate. The learned Counsel therefore submitted that in so far as tanks and vessels cleared by them are concerned this decision of the Tribunal is squarely applicable to their case.
15. Referring to the judgment of the Apex Court in the case of Geep Flashlight Industries Ltd. reported in 1985 (22) E.L.T. 3 (S.C.) the learned Counsel submitted that Hon’ble Supreme Court held that articles made of plastic means article made wholly of commodity commercially known as plastics and not articles made from plastics along with other material. The learned Counsel therefore submitted that having regard to the fact that tanks and vessels manufactured by them and used for industrial purposes are classifiable under chapter sub-heading 3926.90 and therefore gratings which are used for chemical plants also should be classified under chapter sub-heading 3926.90.
16. The learned Counsel submitted that in the case of Collector of Central Excise v. Coromandal Prodorite Private Limited reported in 1995 (78) E.L.T. 733 this Tribunal had held that composite articles of plastic and fibre glass where plastic predominates by weight are classifiable under Chapter 39 of the Central Excise Tariff Act, 1985. Elaborating his contention in this regard he submitted that scrubbers are articles of plastic and therefore following the ratio of this judgment scrubbers must be classified where tanks and scrubbers are classified.
17. Heard the submissions of both sides. In short compass the issue for determination before us can be divided into two parts i.e. (1) what is the classification of tanks, vessels, scrubhers and gratings and 2nd issue is admissibility of the Notification 132/86.
18. In so far as the classification of tanks and vessels is concerned we find that the facts of this case and the case of Heliplastics Limited decided by this Tribunal are similar. The tanks and vessels in the present case are used by chemical plants. No evidence has been brought on record that these tanks and vessels were used as builders ware or were sold to builders. In the absence of any documentary evidence to the contrary we hold that for classification of tanks and vessels the ratio of the judgment cited above will squarely cover the present case. In this view of the matter the tanks and vessels shall be classifiable under chapter sub-heading 3926.90.
19. Now coming to the classification of the scrubbers according to the appellants the scrubbers are nothing but shell of tanks. They are made of plastic. We have seen the decision cited and relied upon by the appellants wherein it has been held that interpretative Rule shows that Headings in the items are to be accepted if they are specific. We find that scrubbers are made of plastic no evidence has been brought on record to show that they are not shell of tanks. Having regard to the fact that scrubbers are made of plastic and are shell of tanks and therefore they will be appropriately classifiable under the same heading under which vessels and tanks are classified. In view of the fact that these scrubbers are also used in chemical plants and therefore they will be classifiable under Chapter sub-heading 3926.90.
20. In so far as gratings are concerned we observe that they are fittings for tanks. The Entry No. 3926.90 reads “other articles of plastics and articles or other materials of Heading No. 39.01 to 39.14.” 3926.10 of polyurethane foam 3929.80 – others. From the submissions made before us we find that gratings are articles made of plastic. We also find that Chapter 39 is specific chapter covering articles of plastics. The use of grating is not material for classifying them under particular heading because the same article can be put to a number of uses. Having regard to the facts and circumstances of the case we hold that grating will be classifiable under Chapter sub-heading 3926.90.
21. Having held that vessels, tanks scrubbers and gratings shall be classifiable under Chapter Heading 3926.90, we hold that benefit of Notification 132/86 shall be eligible to the appellants. The impugned order is therefore modified to the extent stated above and the appeal is disposed of accordingly.