TaxTMI 
TaxTMI 
2018 (6) TMI 766
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....classifying these products under Chapter Heading 3824.90 upto 27.2.2015 and 3824.90.90 thereafter of Central Excise Tariff Act (CETA), 1985. 2.2 Department took the view that the product "Ramco Super Fine" is wall based putty and appears to be more correctly classifiable under CETA 3214.00 upto 27.02.2015 and 3214.9090 thereafter; that the product Ramco-Tile Fix appears to be classifiable under 3506.00 of CETA upto 27.02.2005 and 3506.9999 thereafter; that the product Ramco Super Plaster - Plastering Compound is classifiable under CETA 25232990. 2.3 Show cause notices were issued to the appellants proposing demand of differential duty and imposition of penalties which culminated in the impugned Orders-in-Original and resultant appeals to this forum as tabulated below :- Appellant Appeal No. SCN date OIO No. and date Period covered Duty involved (Rs.) Penalty imposed (Rs.) Madras Cements Ltd. E/475/2010 07.09.2009 7/2010 dt. 29.04.2010 August 04 to March 09 2,00,46,367 2,00,46,367 Madras Cements Ltd. E/115/2011 29.04.2010 31/2010 dt. 23.12.2010 April 09 to Dec 09 66,71,070 Nil Madras Cements Ltd. E/377/2011 ....
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....ed material composition of the three disputed items to the department vide a letter dt. 12.12.2009; hence SCN dt. 7.7.2009 and OIO dt. 29.4.2010 (in respect of Appeal No.E/475/2010) are hit by time bar for the period prior to 1.8.2008. v) Wall Putty falling under CETH 3214 are basically puttys normally used on Dry Plastered Surfaces. Appellants' product Ramco Super Fine is used more to do plastering which gives a plastered surface. Putty is normally used on dry surfaces. However, Ramco Super Fine is meant for use both on dry and wet surfaces and the product literature contained reference to putty only to convey that the product gives the result of a putty which is normally applied on a dry surface. Reclassification has been done arbitrarily on the product pamphlet and without taking into account the technical parameters and ingredients that go into the manufacture of putty and other items referred to under the heading CETA 3214. Putty refers to a pigmented stiff plastic material which is applied by knife to the surface in order to obtain smooth surface for applying paint. Ramco Super Fine, which is cleared in powder form is mixed with water at the place of use and directly appli....
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....4 as other cement Rs. 400/600 per MT's is not correct and therefore, the impugned orders demanding differential duty and imposition of penalty in the case of OIO dated 29.04.2010, are required to be set aside. xi) Ld. Consultant relied on the following case laws : 1) CCE, Surat II Vs Nirmala Dye Chem 2007 (207) ELT 161 (SC) 2) Vicco Laboratories Vs CCE Goa & Thane 2007 (218) ELT 129 (Tri.-Mumbai) 3) CCE Mumbai Vs Narendrakumar & Co 2008 (232) ELT 866 (Tri.-Mumbai) 4) Gail India Ltd. Vs CCE Kanpur 2015 (323) ELT 186 (Tri.-Delhi) 5) Soma Papers & Industries Ltd. Vs CCE Nashik 2015 (326) ELT 339 (Tri.-Mumbai) 6) CCE Mumbai IV Vs Brahans Rubber Pvt. Ltd. 2015 (326) ELT 743 (Tri.-Mumbai) 7) Sunil Forging & Steel Ltd. V CCE Belepur 2016 (332) ELT 341 (Tri.-Mumbai) 8) Neel Metal Products Ltd. Vs CCE Delhi 2017 (7) GSTL 76 (Tri.-Chandigarh 4.1 On the other hand, Ld. A.R Shri K.P. Muralidharan supported the impugned orders. He submits that the adjudicating authority has correctly analysed the product literature of each of these three products and only thereafter has he arrived at the conclusions in the impugned order. 4.2 Ld. A.R further submits that relianc....
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....roduct will be suitable for non-structural purpose in the construction industry; that it can be used for inside and outside applications on walls and ceilings and plastered surfaces. (v) We find that the appellants claimed classification under CETA heading SH 3824 on the ground that impugned product is a non-refractory mortar. However, on perusal of the HSN heading description for 3824, submitted by the appellant themselves, in Paper Book-4, page 20, it is evident that, the heading covers "prepared binders for foundry moulds or cores"; chemical products and preparations of the chemical or allied industries not elsewhere specified or included and residual products of the chemical or allied industries not elsewhere specified or included. We find that CETA description for 38.24 during the period of dispute reads as follows : 38.24 Prepared binders for foundry moulds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Residual products of the chemical or allied industries, not elsewhere specified or included Thus it is seen that CETA heading descr....
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.... or the like, but excluding primers (heading No.32.08), varnishes (heading No.32.09) (After 27-02-2005) 3214 Glaziers' putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings; non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like (ix) As clarified in the HSN, the products of heading 32.14 are "preparations of widely differing composition which are essentially characterised by the uses to which they are put; these preparations are usually put up in a more or less pasty form and in general they harden after application; however, some are in solid or powder forms; the products of this heading are usually applied with a caulking gun, a spatula, a trowel, a plasterer's float or similar tools". It is interesting to note that while the appellants have been claiming that the product is a non-refractory preparation, by virtue of the HSN clarification, we find that even non-refractory preparations also fall under the ambit of both HSN 3214 and of CETA SH 3214. (x) Viewed in this light, we do not find any reason to interfere with the decision of the adjudicating authority reclassifying the product 'R....
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....clothing due to 'cementious' nature of Tile Mix. We, therefore, note that the impugned product is only sold as a cement based product with polymer additives which lend adhesive properties. It is definitely not marketed as a prepared glue or a prepared adhesive. Polymer adhesive content in the product is only around 3 to 4% with the remainder being comprised of OPC cement and river sand. Surely then, such a predominantly cement based product with miniscule percentage of polymer additive, cannot then be straitjacketed as an adhesive wholly or predominantly based on polymers of headings 3901 to 3913 or on rubber or as a synthetic glue or prepared glue or other prepared adhesives. From the facts on record, the product appears to be a cement-based mastic having addition of polymers to lend adhesive properties which would possibly bring it within the ambit of CETA SH 32.14. However, since there is no such proposal made in the SCN and since the attempt of the department to classify it under CETA SH 35.06 has not found favour with us, we would only set aside that part of the impugned order which has ordered classification of "Ramco Tile Fix" under CETA SH 3506.00 upto 27.02.2005 and 3506.9....
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....nly upto almost 75%. Further even the literature states that it "is used the same way cement is used. (vi) We are then not able to find any infirmity with the conclusions of the adjudicating authority that 'Ramco Super Plaster' is nothing but a "value added cement" meriting classification as "Other Cement" in CETA sub heading 2523 2990. Hence that part of the impugned order confirming classification of "Ramco Super Plaster - Plastering Compound" under CETA sub heading 2523 2990. 7. The appellants have also taken recourse to the rulings of Harmonized Tariff Schedule of the United Station (HTSUS) for products with brand name "Uniazul" and "Uniblock" which the mixture containing port land white cement and marble sand with the ratio of marble sand to cement being approx. 2.3 : 1. Uniblock contains 3.2% Hydrated lime and small amounts of calcium stearate, glass fiber, and pigments, in addition to cement and marble sand, the ratio of marble sand to cement being approx. 3.8 : 1. 'Uniazul' was described as a "thin set mortar" to be used to join tile, marble and ceramic coatings in walls and floors and "Uniblock" was described as a "final finish on inside and outside walls and floor. ....