ORDER
Jyoti Balasundaram, Member (J)
1. The proper assessment of ceramic thread guides for the purpose of countervailing duty is the issue for determination in this appeal. The Department has classified them under T.I. 23B of the erstwhile Central Excise Tariff while the importer claims classification under T.I. 68.
2. The appellants are manufacturers of textile machinery. They had imported 15,000 pieces of thread guides required in manufacture of uptwisting machines. These goods were assessed to duty under Notification 179/80-Cus. and duty was charged @ 40% + 25% and CVD under T.I. 23B CET @ 30% + 5% of 30%. According to the appellants the goods are properly classifiable under T.I. 68 and duty is chargeable @ 12% as the imported items have no separate entity or utility except as part and parcel of textile machinery viz. uptwisting machines. Both the authorities below classified the items under T.I. 23B which covers chinaware and porcelainware, all sorts, while T.I. 68 covers all other articles not elsewhere specified.
3. The learned Counsel has cited the following judgments to support his proposition that the goods being recognised as components of textile machinery, are classifiable under T.I. 68 and not under T.I. 23B CET :
1. 1978 (2) ELT 160 (Mad.)
2. 1979 (4) ELT J 36 (Mad.)
3. 1983 (13) ELT 1120 (T)
4. 1983 (14) ELT 1801
5. 1986 (25) ELT 427 (T)
6. 1990 (47) ELT 457 (T)
4. We see great force in his contention. The Tribunal, in the case of Transformers and Electricals Kerala Ltd. v. Collector of Customs, Cochin [1983 (14) ELT 1801] held that porcelain insulators are classifiable under T.I. 68. In the case of Shriram Rayons, Kota v. Collector of Customs, Bombay [1983 (13) ELT 1120 (T)] it was held that porcelain plug valves are components of electrical apparatus and as such not liable to countervailing duty as porcelainwares under T.I. 23B(4). In the case of Collector of Central Excise, Hyderabad v. Pennar Ceramic & General Industries, Nellore -1986 (25) ELT 427 (Tribunal), the Tribunal discussed in paras 19 and 20 of its order, that:
“An equally strong ground against holding these goods to be covered by Item 23B is the difficulty in considering them as “porcelainware”. As already observed in para 17 above, words such as “glassware” and “porcelainware” carry a particular connotation. This has been clearly brought out in the judgment of the Supreme Court in the case of Indo International Industries v. Commissioner of Sales Tax, UP reported in 1981 (8) ELT 325 (SC). That judgment related to a case under the UP Sales Tax Act, 1948, and the question was whether hypodermic clinical syringes could be considered as “glassware” falling under Entry 39 of the First Schedule to the above Act. The Supreme Court observed that in interpreting items in statutes like the Excise Tax Acts or Sales-tax Acts, which classify diverse and technical meaning of the terms of expressions used, but their popular meaning, that is to say, the meaning attached to them by those dealing in them. The Supreme Court then went on to make the following observations which are of great relevance to the present case :
“Having regard to the aforesaid well-settled test the question is whether clinical syringes’could be regarded as “glassware” falling within Entry 39 of the First Schedule to the Act? It is true that the dictionary meaning of the expression “glassware” is articles made of glass”. (See Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in “glassware” does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are normally available in medical stores or with manufacturers thereof like the assessee. It is equally unlikely that consumer would ask for such articles from a glassware shop. In popular sense when one talks of glass such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one’s mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as “glassware” falling within Entry 39 of the First Schedule of the Act.”
In the present case we are concerned with the term “porcelainware” whereas the above judgment specifically dealt with the term “glassware”. We, however, find it obvious that the same considerations which were set out by the Supreme Court with reference to glassware would be equally applicable to porcelainware. We also find that such considerations have in fact been applied by High Courts with reference to the terms “porcelainware” and “glassware”. Thus in the case of English Electric Co. the Madras High Court had observed that although Item 23B covers porcelainware of all sorts, it was doubtful whether an article like HRC fuselinks would be within the ambit of the entry, since it had no possible analogy to any of the things specified in that entry. Again, the Bombay High Court had occasion to consider whether glass windscreens would be classifiable as “glass” or glassware, vide their decision reported in 1982 (10) ELT 237 (Bom.). The High Court answered this question in the negative. In doing so, the High Court applied the test as to whether windscreens could be purchased from a glass or glassware shop or whether they could be purchased only from dealers in motor parts. The High Court found it to be established that windscreens could be purchased only from dealers in motor parts. They also noted the statement of the learned Counsel for the Department that if he walked into glass or glassware shop he could hot purchase an automobile windscreen. The High Court, therefore, concluded that in commercial parlance a windscreen is an entirely different commercial commodity identified independently from glass or glassware.
20. From the judgments cited above, it would be seen that the Supreme Court had held that although the dictionary meaning of the expression “glassware” is “articles made of glass”, in the commercial sense glassware would never comprise articles like clinical syringes and like which have specialised significance and utility, nor does a general merchant dealing in “glassware” ordinarily deal in articles like clinical syringes. These considerations are, in our view, equally applicable to the term “porcelainware”. It is clear that the articles under consideration, namely rasching rings, intolax saddles and balls unglazed are articles of specialised nature, used certainly not expect to buy them from a shop dealing with porcelainware as ordinarily understood, such as articles of table- ware. In our view, therefore, the goods under consideration, even if they could be said to be made of porcelain, cannot be considered as articles of porcelainware, so as to come within the scope of Item 23B(4).”
In the case of Collector of Customs v. Rescon Manufacturing Company reported in 1990 (47) ELT 457 (Tribunal), the Tribunal held in para 7 as follows :
“We have heard both sides, carefully gone through the submissions and also perused the citation. In Dunlop India Ltd. v. Union of India – [AIR 1977 SC 597] as well as in the case of Union of India v. Gujarat Woollen Felt Mills [AIR 1977 SC 1548], the Hon’ble Supreme Court has held that resort should be had not to the scientific meaning or the technical meaning but to their popular meanings or the meanings attached to them by those dealing in them, that is to their commercial sense. In the case of Sales Tax Commissioner v. PVSN Bros. [AIR 1973 SC 68], the Hon’ble Supreme Court has held that dictionary meaning is a delusive guide and is hardly helpful in solving the problems and hence the description of the glass goods, the sales of which are to be taxed under the Act, have to be construed in the sense in which they are popularly understood by those who deal in these and who purchased and use them. This view is found in Advani Oerlikon Ltd. and Anr. v. Union of India and Ors. [1981 (8) ELT 432] by Bombay High Court. The ruling of the Hon’ble Supreme Court in Atul Glass Industries Ltd. v. Collector of Central Excise and Ors. reported in 1986 (10) ECC 1 (SC) at para 8 is also relevant. The same is reproduced below:
“It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind -…”.
The Department has not placed any evidence to show that the imported ceramic pythagoras tubes is a ‘chinaware’ as understood in commercial sense. Applying the well laid rulings of the Hon’ble Supreme Court noted supra, we are not inclined to accept the arguments of the Revenue in this appeal. The reason given in the impugned order-in-appeal by Collector of Customs (Appeals), Bombay are in conformity with the well laid down propositions and hence there is no merit in the appeal and the same is dismissed.”
5. Respectfully following the ratio laid down above, we hold that the goods are classifiable under T.I. 68 for the purpose of countervailing duty.
6. The appeal is allowed with consequential relief, if any.