ORDER
S.L. Peeran, Member (J)
1. The appellants in this appeal have sought for setting aside the order-in-appeal dated 30-8-1985 passed by the Collector of Customs (Appeals) Bombay.
2. The facts of this case are that the appellants are small scale processors/dealers of/in glass/mirrors and regularly import them. The appellants had filed refund claim for reassessment of the imported goods under Heading No. 90.01 of the CTA 1975 and C.V.D. under Heading 68 of CET as against No. 70.01/16 of CTA 75 and 23A(4) of the Central Excise Tariff. They had stated before the Asstt. Collector of Customs (Refund) that the mirrors imported were 321 cms and were made of 6 mm thick float glass. That the glasses were optically clear and process converting it into mirrors will make it optically clear mirror. The manufacturer had certified as free from waves and distortions. They had further submitted that the goods are known in the commercial trade parlance as mirrors and not glass sheets. They had further submitted that they were articles made from glass and not article of glass. The mirroring of glass would render it to fall under Item 68. They had relied upon the orders passed by Appellate Collector in Order No. S/49-197/83R dated 7-4-1983 and hence in these grounds had sought for assessment of their goods under Item 90.01 and not under Item 70.01. The Assistant Collector of Customs (Refunds) in his order-in-original had held that the goods imported were ‘thick mirror’ in size of 6 mm x 200 mm x 321 mm. He had further held that the goods were glass sheets falling under Heading No. 70.01/16 of CTA and 23A(4) of CET. He also held that the goods under question were mirror glass in size of 6 mm x 200 mm x 321 which were not covered in appellate Order No. S/49-197/83-R dated 7-4-1983 relied by the appellants and hence had rejected the claim of the appellants as untenable.
3. The Collector of Customs (Appeals) in the impugned order held the imported goods were ‘thick mirror’ in the form of glass sheet (6 mm x 200 mm x 321 cm) and not mirror as such though it is known in trade as ‘Mirror’. He further held that the goods had not undergone any further process to convert it into ‘mirror’. The Collector had referred to the dictionary meaning of ‘mirror’ and held that mirror retains all the characteristics of glass sheet. It further concluded that the goods in question were ‘glass sheet’ yet to be convertible to ‘mirror’ and hence beyond the scope of the Heading 90.01 of the CTA, 1975 and under Heading 68 of the CET and hence had rejected and appeal.
4. Shri F.L. Berarwala, Advocate appearing for the appellants strongly contended that the imported goods were 6 mm thick mirrors. He referred to the order confirmation form wherein the goods had been described as ‘mirrors’ in silver clear float glass – gray back – 6 mm thick standard sizes. The description in the bill of Entry was ‘6 mm thick mirrors’. He further relied upon the ‘glossary’ appearing in a magazine “US Glass, Metal & Glazing” at page 62 wherein float glass has been described as “Float glass – Glass which has its bottom surfaces formed by floating on molten metal, the top surface being gravity formed, producing a high optical quality of glass with parallel surfaces and without polishing and grinding, the five finished brillance of the finest sheet glass Float glass is replacing plate glass”.
5. He further submitted that the Collector (Appeals) was wrong in coming to the conclusion as glass sheets on the basis of dictionary meaning. He submitted that the authorities below had clearly held that in Trade parlance, the goods were known as ‘mirror’. It has been a settled law that the dictionary meaning should not be taken but what is known in trade parlance should be accepted. He further contended that both the authorities had held the goods as ‘thick mirror’. Having so held, they were not justified in classifying the goods under Item 70.01. He relied upon Atul Glass Industries Ltd. and Ors. v. Collector of Central Excise and Ors. (1986 (25) E.L.T. 473 (S.C.). He also relied upon the Order No. 645/87-D passed by this Tribunal in their own case wherein the Tribunal relying upon the Atul Glass case (supra) had classified six consignments of glass mirrors imported by them under Item 68 CET. He further submitted that the lower authorities in all consignments imported by them having been classifying the glass mirrors under Item 90.01 and placed before us the order-in-appeal No. 5266/87 passed by the Collector of Customs (Appeals) Bombay, which had been passed, basing reliance on the definition of float glass appearing in US Glass March/April 1987 issue at page 62. Shri Berarwalla strongly sought for classification of the imported goods under Heading 90.01 as the goods were mirror and not glass as defined under Item 70.01.
6. Shri S. Chakraborti, Departmental Representative appearing for the Department, argued the matter and supported the orders passed by the lower authorities. He submitted that the goods imported had to undergo more processes to become a mirror and as such, the finding of the Collector(A) that the imported goods were glass sheets was the correct finding. He submitted that the description in the invoice, bill of entry and the order confirmation describing the imported goods as thick mirrors were all done in collusion with the importer and contended that the goods were glass sheets. In support of this contention, he could not place any material but was drawing only an inference. He further submitted that the section notes and chapter notes have a over-riding force on the respective Headings and in that connection, he relied upon the rulings in the case of Suarashtra Chemicals, Porbandar v. Collector of Customs, Bombay [1986 (23) E.L.T. 283] and Brakes India Ltd., Madras v. Superintendent of Central Excise [1986 (26) E.L.T. 211].
7. We have heard both the sides, perused the records and carefully considered their submissions. The question that arises for consideration in this appeal is as to whether the imported goods have to be classified under Item 70.01 as has been done by the lower authorities or under Item 90.01 as contended by the appellants. The respective headings reads as follows –
_______________________________________________________________________________
Rate of Central Excise
duty Tariff Item
_______________________________________________________________________________
70.01/16 Glass and glassware, including containers 100% 23-A
for the conveyance or packing of goods,
envelopes for electric lamps, electronic valves or
the like, inners for vacuum flasks, articles of
stationery, illuminating glassware, optical elements
of glass not optically worked nor of optical glass,
clock and watch glasses and bricks tiles slabs and
similar articles of a kind commonly used in building
_______________________________________________________________________________
The description in Heading 90.01 is as under -
_______________________________________________________________________________
Rate of Central Excise
duty Tariff Item
_______________________________________________________________________________
Lenses, prisms, mirrors and other optical elements 60% 23-A
of any material unmounted other than such
elements of glass not optically worked; sheets
or plates, or polarising material
_______________________________________________________________________________
8. In Atul Glass Industries Ltd. v. Collector of Central Excise and Ors. reported in [1986 (25) E.L.T. 473], the question of classification of glass mirror came up before the Supreme Court. At para 7 of the said judgment, it is observed -
“A broad description of the process through which a glass sheet passes has been detailed earlier. It indicates clearly to our mind that the original glass sheet undergoes a complete transformation when it emerges as a glass mirror. What was a piece of glass simpliciter has now become a commercial product with a reflecting surface. Into the process of transformation have gone successive stages of processing with the aid of chemicals such as stannous chloride, silver nitrate and copper coating besides an entire range of physical processes involving polishing, washing, coating, drying, varnishing, evaporation and cooling. The evolved product is completely different from the original glass sheet. What was once a glass piece in its basic character has no longer remained so. It has been reduced to a mere medium. That is clear if regard is had to the fundamental function and qualities of a glass mirror. The power to reflect an image is a power derived not from the glass piece but principally from the silvering and other processes applied to the glass medium. If any part of the coating is scratched and removed, that particular area of the glass mirror will cease to be glass mirror. That simple test demonstrates the major importance attributable to the chemical deposit and coating which constitute a material component of a glass mirror. It is not mandatory that a mirror employed for the purpose of reflecting an image should have a glass base. Copper mirrors have been known from the dawn of history. In the modern age, acrylic sheets are sometimes used instead of glass for manufacturing mirrors. It is apparent therefore, that a glass mirror cannot be regarded as a glass. For the same reason, it cannot be classified as glassware for glassware means merchandise made of glass and understood in its primary sense as a glass article. A glass bowl, a glass vase, a glass tumbler, a glass table top and so on are all articles in which the primary component is glass. They are nothing more and nothing less. Any treatment of an ornamental nature applied to such articles does not derogate from their fundamental character as glass articles. It is quite the contrary in the case of a glass mirror. The case is more akin to that of carbon paper. A sheet of paper with a carbon coating thereon is employed for the purpose of producing copies of the original. The paper is a mere base while the function is performed by the carbon coating. This court held in
State of Uttar Pradesh v. Kores (India) Ltd. [1977 (1) SCR 837] that carbon paper could not be described as paper. It referred to the functional difference between the two and pointed out that while paper would be understood as meaning a substance which are used for writing or printing or drawing on or for packing or decorating or covering the walls, carbon paper which is manufactured by coating the tissue paper with a thermosetting ink based mainly on wax, non-drying oils, pigments and dyes could not be so described”.
Again the Supreme Court has observed in para 8 as follows –
“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. In the case of a glass mirror, the consumer recalls primarily the reflective function of the article more than anything else. It is a mirror, an article which reflects images. It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror. The basic fundamental character of the article lies in its being a mirror”.
9. From the reading of the observations made by the Hon’ble Supreme Court in the above paras, it is clear as to the distinction between the glass and the glass being used as medium for manufacturing mirror. In this case, admittedly the imported product is not a mere mirror glass or glassware. There is a very clear distinction in the product. From the reading of the distinction of the float glass appearing in New Year’s Glass Metal and Glazing at page 62, the float glass has been defined as “glass which has its bottom surfaces formed by floating on molten metal, the top surface being gravity formed producing a high optical quality of glass with parallel surfaces and without polishing and grinding the fire finished brilliance of the finest sheet glass. Float glass is replacing plate glass”. The description of the imported article given in the order is mirrors in silvered cleared float glass. The Bill of entry also described it as thick mirror and so does the invoice. The Collector in his order has admitted the imported product as ‘thick mirror’ in the form of glass sheet, and it is known in the trade as mirror.
10. The Assistant Collector of Customs (Refunds) in his order-in-original had held that imported goods as thick mirror. Thus, it gets confirmed that the imported goods is not a plain glass or a glassware calling for classification under Item 70.01 as observed by the Hon’ble Supreme Court in Atul Glass (supra). If the glass had been used as a medium for manufacturing the mirror, than the glass looses its identity and requires to be classified under Item 90. It is well settled that dictionary meaning of the items cannot be taken for the purpose of classification but the goods as understood in common parlance and in commercial terms should be taken. The Collector has admitted in his order that in trade imported item is referred as mirror. It matters little if further processes are to be done on this mirror. The imported goods cannot be considered as glass sheet as the goods have not been so described in any of the imported documents. Merely because the party has admitted that there are some more processes required to be done to make the glass optically clear, this by itself, cannot be taken as a mere glass sheet. The Revenue has not placed any material to show that it is a mere glass and no processes on its has been carried out. We are convinced that the imported product is a float glass and not a mere glass sheet. Subsequent consignments have been classified by Collector (Appeals) under Item 90.01. The appellants are entitled to succeed in this appeal with consequential relief. Appeal is allowed.