TaxTMI 
TaxTMI 
2025 (4) TMI 829
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....itor General of India (C&AG) Audit observations. It is submitted that the 'clear float glass' imported by them is rightly classifiable under CTH 7005 1090 which was rejected by the Revenue only on the ground that it does not have a 'absorbent layer'. Further, relying on Chapter Notes 2(c) of Chapter 70, it is submitted that 'clear float glass' imported by them has a layer of oxidized metal i.e., tin on the side, which is an absorbent layer. It is further stated that when 'clear float glass' is manufactured, the raw materials, namely sand, soda-ash, limestone, feldspar, broken glass etc., are first melted in the furnace and the molten materials are subsequently fed into a bath of molten tin and spreads over a tin. This results in the formation of the absorbent layer of tin on one side of the glass. Referring to the decision of the Kolkata Bench of this Tribunal in the case of M/s. Bagrecha Enterprises Ltd., Vs. Commissioner of Customs vide Final Order No. 77460-77462/2023 dated 03.11.2023, wherein reliance was placed on the technical clarification from CSIR-CGCRI that the tin layer is an absorbent and non-reflective layer. He also relied on the decision in the case of Oswal Agro Mil....
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....oner (Appeals) in the impugned order has observed that "the manufacturing process of Float Glass reveals that during the production of any float glass, the molten glass is fed into a "Float or Tin Bath" to make float glass perfectly flat and smooth. Tin is suitable for float glass process because it has a high specific gravity, is cohesive and is immiscible with molten glass. Though, it leaves a residue on one side on the glass panel which can be identified with the short-wave UV light. It indicates that "float or tin bath" process is followed during the production of each and every float glass, hence, any type of float glass falling under CTH 70051, 700521, 700529 or 700530 have to undergo to the process of float or tin bath during its manufacturing and therefore, this cannot be treated as layer in sense of CTH 700510 or more specifically any observant, reflecting or non-reflecting layer. Further, the possibility of classifying the glasses under CTH 7005 2110 (meant for tinted) or under CTH 7005 3010 (wired glass) was also ruled out. I find that the subject goods are merit classification under CTH i.e., 7005 2990 - "others". 7. On the other hand, the appellant had placed on rec....
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....the manufacturing process that the CFG manufactured as above has a microscopically thin coating of metal layer, namely TIN on one side of the CFG, which is known as "Tin Side". Further it is an undisputed fact in this proceeding that the imported CFG are non wired and non-tinted. This leaves us to ascertain whether such microscopically thin Tin Coating appearing on the TIN side is an absorbent, reflecting or non- reflecting layer to get classified under Tariff item 7005 1090. 9.3 It is already on record that the Department have drawn samples and tested the same with the Government notified laboratory namely CSIR CGCRI, Kolkata which had reported that the imported CFG sample is having a microscopically thin coating of Metal, namely TIN, and it is an absorbent/non-reflective layer. This fact is also not in dispute in this proceeding. However, the SCN alleges that such absorbent reflective tin layer present in the CFG is obtained by natural phenomena during the manufacturing process and not by way of a separate coating process after manufacture of CFG and hence, the imported CFG would not merit classification under tariff item 70051090. The Ld. Adjudicating Authority has conf....
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....Agency viz., CSIR-CGCRI as many as more than 40 test reports pertaining CFG imports through various Custom Houses. Further, the Ld. Advocate referred to an RTI application made to CSIR wherein it was clarified that all the float glasses tested for Customs by them since 2017 till 17.07.2023 has a tin layer on one side of the float glass which is absorbent and non-reflective. [CSIR-Central Glass and Ceramic Research Institute's letter dated 17.07.2023. (Page No. 43 of Synopsis filed)] 9.8 He also submitted that, identical goods manufactured by domestic manufacturers viz., Saint Gobain have also classified the goods under CTH 7005 1090 and assessed accordingly both for domestic clearances and exports. 9.9 We find that Department's insistence of absorbent layer to be only on the air side for its classification under CTH 70051090 was vehemently contested by the counsels for the appellant and they submitted that, neither the tariff heading nor the chapter note provides for a requirement of such coating on any prescribed side and instead, on a plain reading of the tariff entry and the chapter Note 2(c) would only envisage that the CFG should have an absorbent, reflective....
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.... the adjudicating authority while adjudicating the case. Therefore, the impugned order is bad in law. 21. We further take note of the fact that in the case of M/s. Suraj Constructions (supra), the Advance Ruling Authority has examined the issue and observed as under:- "7. I have considered all the materials placed before me for the subject goods. I have gone through the submissions made by the applicant during personal hearing and the comments of the jurisdictional Principal Commissioner/Commissioner of Customs, on the impugned subject matter. The subject goods for which advance ruling has been sought, their characteristics, manufacturing process, utility etc. are already mentioned in the aforementioned paras. The subject goods are clear float glass, with an absorbent layer, which is fluorescent under UV illumination. The subject goods are not wired, tinted or green in colour. The heading 7005 10 covers non-wired glasses having an absorbent, reflecting or non-reflecting layer and the headings 7005 21 to 7005 29 deal with non-wired glasses which are tinted having absorbent layer, opacified, flashed etc. Therefore, the subject goods are appropriately covered under s....
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....d paras. The subject goods are clear float glass, with an absorbent layer, which is fluorescent under UV illumination. The subject goods are not wired, not tinted or not green in colour. The heading 7005 10 covers nonwired glasses having an absorbent, reflecting or non-reflecting layer and the headings 7005 21 to 7005 29 deal with non-wired glasses which are body tinted, opacified, flashed etc. Therefore, the subject goods should more appropriately be covered under sub-heading 7005 1090. While prima facie, based on the applicant's submission about the country of origin and the manufacturer of the subject goods, exemption notification no.46/2011-Cus., dated 01.06.2011, appears to be available, in terms of the said notification, in each case of import the applicant would have to produce evidence before the Deputy/Assistant Commissioner of Customs to substantiate the origin of subject goods. 11. In view of the above discussions, I hold that the subject goods 'Clear Float Glass' having an absorbent layer merit classification under heading 70.05 and more specifically, under subheading 70051090 of the first schedule to the Customs Tariff Act, 1975. The said imports shall also be....
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...." would cover non-wired glasses without absorbent, reflecting or non-reflecting layer. 5.4.4 The Adjudicating Authority has held that CTH 700521 covers glass which may or may not have absorbent or reflecting or non- reflecting layer. The Adjudicating Authority has contended that the impugned goods are coloured through out body (i.e. body tinted) and thus covered by CTH 700521 and articles of CTH 700521 may or not have absorbent/reflecting layers. This interpretation itself is erroneous in light of scheme of CTH under 7005 and explanation given in 5.4.3 above. 5.4.5. It is settled position of law that burden of proof of classification is on the Department. The classification has been changed on the basis of Test Reports. I have carefully going through the copies of Test Reports from CGCRI, Kolkata. I find that said Test Reports are not conclusive enough to reject the declared classification by the Appellant. Rather, the said Reports do mention the presence of Layer. The exact findings of some of the Test Reports in this regard are as under:- "c) The Tin Side is detected under UV illumination using the detecter. i) An absorbent layer (Tin) is obser....