TaxTMI 
TaxTMI 
1984 (4) TMI 281
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....s had sought the classification of the goods under Item 68. After consideration of their arguments, the Assistant Collector, in his order dated 15-11-1980, held that the goods were "glazed clayware" and accordingly classifiable under Item 23B. In reaching this conclusion, the Assistant Collector, having regard to various authorities held that the articles were "glazed clayware". He further held that, according to the various authorities, terracotta was an article of archaeological and aesthetic value and not a utility or kitchenware or tableware like plates, cups and saucers. 3. In appeal, the Collector (Appeals) took the contrary view. He also considered various authorities cited by both sides. He finally came to the following conclusions :- "Terracotta pottery is merely a type of Terracotta ware. Terracotta is a material which has been put to variety of uses, since ancient times. It is not only used for making articles of artistic value, but also for manufacture of articles of utility. In fact many Terracotta pieces have both utility as well as artistic value. From the affidavit submitted by the appellants regarding the process of manufacture it is evident that the raw....
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.... Hill Dictionary of Scientific and Technical Items-IInd Edition on page 1608." (ii) "A Hard unglazed pottery of a fine quality of which decorative tiles and bricks, architectural decorations, statuary, vases and the like are made." "An object of art made of this substance". The Shorter Oxford English Dictionary on Historical Principles, Vol. II-3rd Edition-Page 2267. (iii) "A composition of clay and sand used for statues", "hardened like bricks by fire" "an object of art made of it". Chambers 20th Century Dictionary. (iv) "Hard reddish brown pottery (used for vases, small statues, ornamental building material etc." Advanced Learners' Dictionary of Current English-Oxford University Press. (v) "la : a usu, low-fired and typically reddish unglazed ceramic material (as the earthenware of many primitive potters); also : an object (as a bowl or figurine) of such material (Greek terra-cottas) b : a usu. hard-fired glazed or unglazed ceramic architectural material often pressed or cast in ornamental forms and used esp. for decorative facing and tiles 2a : a brownish orange that is redder and deeper than spice, leather, or gold pheasant b : textiles : a moderate to s....
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....rticle made of clay with or without glaze and with or without the addition of other ingredients like feldspar and quartz" (page 6 of the Standard). Shri Tayal submitted that the goods in question were glazed and obviously not porous, and therefore would not conform to the I.S.I. definition of clayware. 11. Shri Tayal also referred to the Chemical Examiner's report, which is quite detailed. For the present purpose it is only necessary to note that according to the Chemical Examiner each of the five samples was found to be brown coloured with glazed surfaces and of specific shape in the form of tableware. Each had glazed surfaces. Each had water absorption property of more than .5%. The iron oxide content of each was more than 1.5%, indicating that they were not entirely made of China clay or kaolin. 12. Shri Tayal finally submitted that in the light of the characteristics of the goods, the authorities cited by him, and the wording of the relevant Tariff Item, the goods were correctly classifiable under Item 23B as "glazed clayware". 13. Shri Chandrasekharan, who appeared for the respondents, showed us certain articles which he said were representative of thos....
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....owed that under present-day usage the term applied even to tableware. 18. Referring to the quotation from Webster's Dictionary given by Shri Tayal, Shri Chandrasekharan pointed out that among the objects included were a bowl. This would show that utilitarian articles were covered. Further, the words "often pressed or cast in ornamental forms" would show that utility articles were not ruled out. 19. Shri Chandrasekharan argued that the term "terracotta" might have had a restricted meaning in the past, so as to cover only ornamental articles. However, is connotation had undergone a change in course of time, and nowadays it was applied to articles of utility also. Shri Chandrasekharan submitted that such a shift in the sense of an expression should be taken into account, and in this connection he relied upon the judgment of the Bombay High Court in the case of Commissioner of Sales Tax v. Messrs. Agarwal & Co., reported in 1983 E.C.R. 65D. In that case, which referred to the question whether the term "milk" in the Bombay Sales Tax Act included skimmed milk powder, the Bombay High Court answered the question in the affirmative. In doing so, the High Court cited the judg....
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...."terra cotta" refers to all kinds of fired clay. In its most restricted sense the term is used for small sculptures of red, lightly fired, unglazed earthenware popular since the Renaissance." At page 517 there are four illustrations over the heading "Terracotta Pieces". Of these, two represent reliefs found on the temples. One is a painted bowl possibly from Central Peru, and the fourth represents Chinese glazed funerary figurine of a woman on horse back. 21. Shri Chandrasekharan referred to the report of the Chemical Examiner, which showed that the iron oxide content was more than 1.5%, and indicated that the articles were not entirely made of China clay or kaolin. He submitted that terracotta could be made of any clay and not necessarily of China clay, which was a fine variety. In fact, some very cheap articles of utility were made of ordinary clay, such as the terra cotta vessels (corresponding to the surahis used in India) referred to in the Encyclopaedia Americana. 22. Finally, Shri Chandrasekharan referred to a number of invoices of the respondents bearing dates between 12-10-1983 and 21-1-1984, showing sales of tableware articles to a hotel and to dealers ....
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....would not be covered by that Item. Taking these considerations into account, it appears to us that the use of the term "terr cotta" by itself would, on the principle of ejusdem generis indicate that it refers to a class of articles distinct from "wares" of China and porcelain and clay (glazed). 24. The quotation from Webster's 3rd New International Dictionary (Vide para 7 above) shows that the term terracotta is used in different senses. As a noun, it can refer to the material (low-fired and typically reddish un-glazed ceramic material). It can also refer to an object of such material. As an adjective, it is used to denote a colour-either a brownish orange or a reddish brown. In the context of the Tariff it has to be taken in the sense of a noun, denoting objects made of the material. Consequently, when interpreting the Tariff Item, we have not to take into account a hypothetical term such as terracotta ware, but the term "terracotta", and find out what objects this term is normally understood to mean. 25. In this context both sides have quoted various works of reference, all of which could be regarded as authoritative. The definitions or descriptions contained in t....
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.... assist us in the present case. Still, as submitted by Shri Tayal, and as seen from the Encyclopaedia Americana, porosity could have some connection with lack of glazing, and, therefore, the criteria of being porous and being unglazed would to some extent go together. 30. So far as glazing is concerned, the Shorter Oxford Dictionary defines terracotta as being unglazed. Shukla and Pandey's work has a similar statement. Webster states that it could be glazed or unglazed. The best exposition is given in the Encyclopaedia Americana (para 20), which states that unglazed terracotta, which remains porous despite firing, is used for decorative work such as sculpture, ornamental vases and architectural ornament. Glazed (and also unglazed) terracotta is used for bricks, tiles, structural materials and fire proofing. This variation in uses seems logical, because in the case of articles like bricks and tiles, which are exposed to weather, porosity would be a drawback and therefore glazing, which appears to reduce porosity, would be an advantage in their case. 31. The I.S.I, does not say anything about glazing, but the fact that the porous quality is emphasized indicates that t....
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....;It, therefore, appears that the term terracotta as used in the Tariff and as it is ordinarily understood refers to (a) ornamental articles such as statuary and figurines, (b) building and similar materials, and (c) crude and unglazed utility articles such as vessels used for cooling water by evaporation. It would not cover articles of crockery and tableware which are glazed and are similar to Chinaware and Porcelainware except that they are of reddish or brownish colour. 36. The advertisement for Linea 'Terra Cotta' referred to in para 17 above might appear to go against the above conclusion. We, however, observe that the usage in that advertisement is at variance with the definitions in the authoritative works of reference which we have examined. Further, as explained later in this order, the name that a manufacturer gives to his product is dictated by many considerations and cannot have the authenticity of a standard work of reference. Apart from this, the very use of quotation marks around the words 'terra cotta' in the advertisement shows that the advertisers themselves were conscious that they were not using the term in the ordinary accepted sense. 37. This br....