TaxTMI 
TaxTMI 
2024 (4) TMI 359
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....ax credit shall be made, unless the appellant has been given an opportunity of being heard. 2. Under Section 103(1) of the Act, this Advance ruling pronounced by the Appellate Authority under Chapter XVII of the Act shall be binding only,- (a) on the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b) on the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104(1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Go....
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.... • However, beyond the regular process of manufacture of float glass, no additional coating of any layer, as mentioned in the explanatory notes above, which would serve as an absorbent, reflecting or non-reflecting layer is carried out. • The presence of tin on one side of the glass is by default on account of manufacturing process, and not by design or intended to add a layer with any of the properties such as absorption or reflection or non-reflection. Thus the tin layer is incidental to the manufacturing process of float glass and is not used in float glass process with the specific objective of providing any absorbent properties. • The float glass has not undergone any coating process for presence of an absorbent, and all such types of glass which are manufactured under the float process invariably would contain a layer of tin on one side, which does not mean that the float glass is to be classified under 7005 10. • Further, as it is also not coloured throughout the mass (body tinted), opacified, flashed or merely surface ground, the item would not be covered under the sub-heading 7005 21. • Hence the appropriate c....
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....lied during the manufacturing process or subsequently. • The tin layer acts as an absorbent layer and therefore, the subject goods satisfies the requirement under Note 2(c) to Chapter 70 and merit classification under CTH 7005 1090. • Inspite of filing the invoices, Bills of Entry and the relevant Test Reports which was obtained by the Department, and which clearly mentions the description of goods and the presence of tin layer, the total disregard with respect to the test reports relied upon by the Appellant as in the findings of the Learned Authority in paragraph 6.10, is not sustainable. Further, when the test report pertains to the same goods imported from the same manufacturer, it is permissible to place reliance on the previous test report taken. • With respect to the finding that the advance rulings will apply only to the applicant who had sought it, it is stated that they have persuasive value and that the same has been observed in the case of Cyril Eugene Pereira, in Re. [(1999) 239 ITR 650] and in the case of Union of India & Anr. V. Azadi Bachao Andolan & Anr [(2003) 263 ITR 706 at 742]. • The finding of the Learned Aut....
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....0/2022 had held that 'Clear Float Glass' with absorbent layer on only one side would merit classification under heading 7005 and more specifically under the sub-heading 7005 1090. • In another identical matter involving M/s. Chandrakala Associates, the Customs Authority for Advance Ruling, Mumbai vide Ruling dated 24.09.2021 in No. CAAR/Mum/ARC/36/2021, had held in page 4 of the said order that the subject goods are clear float glass, with absorbent layer, which is fluorescent under UV illumination and that they would merit classification under heading 7005 and more specifically under the sub-heading 7005 1090. • The issue involved in the appeal is covered by the decision of the Hon'ble Tribunal in the case of M/s. Bagarecha Enterprises Vs. Commissioner of Customs, Kolkata [Order dated 03.11.2023 passed in Appeal Nos. C/75536 to 75538/2023], wherein it was held that the presence of tin layer on the clear float glass is sufficient to classify the same under CTH 7005 1090, which squarely applies to the instant case. • It has also been stated that the representative of the appellant had filed an application dated 20.06.2023 with M/s. Central Glas....
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....As undertaken by them in the personal hearing, the AR furnished the following additional submissions vide their letter dated 14.02.2024, and requested that the same may kindly be placed on record, viz.,- • The issue involved is squarely covered by the decision of the Hon'ble CESTAT Kolkata in the case of Bagarecha Enterprises Ltd Vs. Commissioner of Customs, Kolkata [Final Order No. 77460-77462/2023 dated 03.11.2023], Though the said order was quoted before the Hon'ble Authority for Advance Ruling and has been reproduced in paragraph five (5) of the impugned order, the said judgment has not been discussed or taken into consideration under the impugned order dated 22.11.2023, while deciding the issue. • The Authority for Advance Ruling did not dispute the fact that the subject goods have tin layer on the one side. The Central Glass and Ceramic Research Institute, Kolkata in their RTI reply dated 17.07.2023 have stated in response to question No. 6 as follows- "6. It is observed in some of the reports that "No other layer other than tin layer is found on one side of the glass which is fluorescent" is mentioned. Whether such layers are reflective or ....
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....th scientifically as well as legally justifying the classification of the CFG under Chapter heading CTH 7005 10 90, in their reply to the said audit para. • The appellant submits that when the Action Taken Report (ATN) by the Ministry of Finance clearly contended that the subject product is classifiable under CTH 7005 10 90, ignoring the same is biased approach by the proper Officer of Customs. Without taking into account the case laws and the advance rulings, Proper Officer of Customs has proceeded to confirm the classification of clear float glass under CTH 7005 29 90. In this connection, kind reference is drawn to para 5.3 of the above circular wherein it has been mandated that, adjudicating authority is a quasi-judicial authority and is legally bound to adjudicate the case independently and judiciously taking into consideration the audit objection by CERA/CRA reply of the department as referred above, reply of the party, relevant legal provisions, case laws on the subject and relevant circulars of the board if any. It could be seen that the Proper Officer of Customs has thrown all the cardinal mandates laid down for adjudication as per the above said circular to wi....
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.... (Tin) on one side, merits classification under CTH 7005 1090. To this effect, the appellant has adduced the following points in support of their stand, viz.,- i. Note 2(c) to Chapter 70 of HSN defines the expression 'absorbent, reflecting or non-reflecting layer' and only states that there should be a thin coating of metal or metal oxide with absorbing property, for example, infra-red light, or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass. ii. The existence of tin layer on one side of the glass is not disputed by the Authority (AAR). iii. The HSN Explanatory Notes to CTH 7005 does not prescribe any specified manner in which the coating of metal/absorbent is to be obtained, and therefore the clear float glass can be said to be absorbent, as long it has a coating of tin metal, irrespective of whether such coating is applied during the manufacturing process or subsequently. iv. The tin layer acts as an absorbent layer and therefore, the subject goods satisfies the requirement under Note 2(c) to Chapt....
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....lassification of products under chapter heading 7005 is reproduced below:- HSN Code : Description 7005 Float glass and surface ground or polished glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked 7005 10 - Non-wired glass, having an absorbent, reflecting or non-reflecting layer 7005 10 10 ---Tinted 7005 10 90 --- Other - Other Non-wired Glass 7005 21 --Coloured throughout the mass (body tinted), opacified, flashed or merely surface ground 7005 21 10 --- Tinted 7005 21 90 --- Other 7005 29 -- Other 7005 29 10 --- Tinted 7005 29 90 --- Other 7005 30 - Wired Glass 7005 30 10 --- Tinted 7005 30 90 --- Other 6.6 To begin with, we observe that the chapter heading 7005 relates to float glass under four sub-headings, viz., 7005 10, 7005 21, 7005 29 and 7005 30. Out of the above, chapter sub-heading 7005 21 covers "Coloured throughout the mass (body tinted), opacified, flashed or merely surface ground", and chapter sub-heading 7005 30 covers "Wired Glass". In this regard, we notice that in para F of the Grounds of Appeal (vide A....
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....f a liquid pool and later retains smooth finish of liquid surfaces. Before it reaches the end of the bath, it is cooled to a temperature at which it is hard enough to be passed over rollers without being marked or distorted. From the float bath, the glass moves through an annealing lehr, at the end of which it is cooled and can be cut. This glass is not surface ground or polished; it is perfectly flat as a result of the manufacturing process. The heading also covers the types of glass of headings 70.03 and 70.04, which have been surface ground or polished (usually the two processes are combined). In the surface grinding process the glass is subjected to..... The glass of this heading may be coloured or opacified in the mass, or flashed with glass of another colour, during manufacture or may be coated with an absorbent, reflecting or non-reflecting layer." 6.10 Further, the Note 2 to Chapter 70 (Glass and glassware), reads as follows:- 2. For the purposes of headings 7003, 7004 and 7005: (a) glass is not regarded as "worked" by reason of any process it has undergone before annealing; (b) cutting to shape does not affect the cl....
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....olten metal, typically tin, to create a uniform thickness and smooth surface. It is a high-quality, versatile material commonly used for architectural, automotive, and decorative purposes. Float glass can be further processed by cutting, drilling, laminating, tempering, and coating to meet specific optical requirements. Its optical properties include high transparency, low absorption, and minimal distortion." Another write-up on 'Float Glass', available under 'FOSG', read as,- "Basic float glass is manufactured by melting sand. Other ingredients such as soda ash, limestone, salt cake and broken cullet glasses are added to lower the melting temperature of silica and promote optical clarity of the finished glass product. Mixed batch of above materials is heated to a temperature of 1450 to 1650° C and formed into large flat sheets by floating molten glass on molten tin, thus giving it precise flatness and transparency. TINTED FLOAT GLASS It is a normal flat glass to which colour is added during manufacturing process to achieve tint and solar radiation absorption properties. " We find that all these literature/write-ups on float glass speak....
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....hat the report mentions about the presence of "An absorbent layer (Tin) is observed on one side of the glass which is fluorescent under UV illumination for both the glasses". At the same time, it is observed that the test report does not say that the glass has undergone any coating process. This Tin layer on one side which fluoresce under UV illumination is not the result of applying any coating on clear float glass, but actually inherent to the production of Float Glass. As discussed in para 6.11 above, the write-up on float process by Sir Alastair Pilkington states that modified properties are produced by means of surface coatings whereby a microscopically thin coating on glass is applied by chemical vapour deposition technology; the write-up under "UQG Optics" refers to application of secondary process of laminating, tempering, coating, etc., to meet specific optical requirements; the write-up under 'FOSG' suggests adding colour to the glass during the manufacturing process to achieve tint and solar radiation absorption properties. As the said test report does not mention that the glass has undergone any such coating, we are of the opinion that the glass does not have an absorbe....
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....oms Tariff Heading (CTH) in the COO/FTA Certificate issued at the point of origin of goods; • That though the appellants had claimed that they were forced to clear the goods under CTH 7005 2990 to avoid demurrage, they have neither produced any technical inputs or substantive evidence in support of their arguments, nor any protest was registered by them before assessment of the goods; • That under the Customs Act, 1962, the process of filing a Bill of Entry allows the appellant to file under their own Customs Tariff Heading (CTH), and subsequently the Bill of Entry will be subjected to assessment by the assessment officer. Therefore, the importer's assertion that they were not permitted to file the Bill of Entry under CTH 7005 1090 by the assessment officer was incorrect. • Accordingly, all the 15 appeals of the appellant involving the 15 BOEs mentioned in the said Order-in-Appeal, were rejected by the Commissioner (Appeals). 6.15 We find that the discussions in the aforesaid Order-in-Appeal regarding the Country of Origin Certificate from Malaysia and the mention of the classification code as 70052990, of late, in respect of such goods exp....
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....cation are being governed by the same set of notes/regulations worldwide for uniformity. 6.17 Therefore when the Country of Origin Certificate issued by MITT, Malaysia which was carrying the classification code as 7005 10 90 hitherto, is reported to have changed the classification code, of late, as 7005 29 90, we feel that it is made with a sense of purpose, and that it cannot be considered as an erroneous mention, or as an entry due to oversight. We are therefore of the opinion that the mention of CTH 7005 2990 was made with a conscious effort to set right the anomaly that existed earlier in respect of the exports received, of late from Malaysia, the country of origin. Alternatively, it can also be said that the goods being received at present, rightly merit classification under 7005 2990. At this juncture, the relevant entries under the chapter heading 7005, at the six digit level alone, are reproduced hereunder, for a better understanding of the issue. HSN Code Description 7005 Float glass and surface ground or polished glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked 7005 10 - Non-wired glass....
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....ATED". 'Clear float glass' are transparent and colourless and allow visible light to pass through it. It is also apparent that 'Clear Float Glass' neither possess an absorbent, reflecting or non-reflecting layer to absorb or improve the reflecting qualities of the glass nor are coloured throughout the mass (body tinted), opacified, flashed or surface ground and therefore, same are excluded from the purview of classification under CTH 70051090 or CTH 700521. Further, the Clear Float Glass are not wired glass and as such do not merit classification under CTH 700530. In view of the aforesaid position, the subject goods are rightly classifiable under Customs Tariff Heading 70052990 of the Customs Tariff Act, 1975, 6.20 Further, as the appellant in the instant case is a trader of the imported goods, and not the actual manufacturer, it becomes imperative on their part to adopt the HSN based Customs Tariff Heading mentioned in the import documents, for the purposes of assessment under GST as well. In this regard, it may be noted that classification of products under GST is aligned with the Customs Tariff Act, 1975, in view of the explanation (iii) and (iv) to Notification No. 01/2017-C....
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....e same do not substantiate their argument, as we find that the relevant clause at para 16 of the said findings runs as "The classification at the eight digit level is 7005 1090 even though the same are being classified and imported under various headings like 7003, 7004, 7005, 7009, 7013, 7015 7016, 7018, 7019 and 7020 etc. The customs classification is indicative only and in no way binding upon the product scope of the Customs Tariff Act, 1975." Further, it is seen that the focus of the said findings is on the dumping of the product, and not on the classification aspect. This apart, the product involved in the instant case is reportedly being received from Malaysia, whereas the said finding discusses about the product originating in or exported from Pakistan, Saudi Arabia and UAE. • The appellant's argument that domestic manufacturers of identical products such as M/s. Saint Gobain classify the goods under CTH 7005 1090, and that a majority of the imports into India of float glass with absorbent layer have been correctly classified under CTH 7005 1090, does not have substance, as they have neither substantiated the same with scientific/technical inputs of the products....