TaxTMI 
TaxTMI 
2006 (4) TMI 125
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the department. It was also held that there was no suppression of facts by the respondents. 2. As all these appeals were disposed of by the Tribunal by a common order, we also propose to dispose them of by passing a common order. For the sake of convenience, the facts are taken from Civil Appeal No. 2676 of 2001 (Super Scientific Glass Industries). 3. Respondent-assessee filed declarations in terms of Rule 174(2) and the notification issued thereunder, during the period April, 1991 to April, 1995 claiming exemption from licensing control on the ground that the product manufactured by them was exempted from payment of duty. The fact of filing of these declarations has been acknowledged by the Commissioner in its order. In each declaration the products manufactured by the respondent were described as 'Laboratory Glassware' classifiable under sub-heading 7012.10. For the above years except one the tariff rate of duty under this heading was nil. 4. In the year 1994, respondent's premises was searched. The sales literature and the catalogues were examined. Statements of their buyers were also recorded. The authorities concluded on the basis of the investigation carried out by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hape, Sepa- rating etc. of various sizes/capacity and shapes 7. Tubes Inlet, Outlet, Vent, Addition, Plain, Thermometer Pocket, Thermowell, of various sizes and shapes 8. Stirrers Anchor, Bladed, Vortex, Centrifugal, mercury Seal Chuck & Seal Type, Link Type, Plain etc. of various types/shapes/sizes/lengths and dia 9. Columns Plain, Vigreux, Packed, Silvered, Fractionation, Jacketted Heated, Bubble Cap with Joints Flange ends etc. of different dia/shapes & length Upto 18" dia. 10. Extractor Soxhlet, Liquid/Liquid, Liquid/Solid, Upward, Downward of various types, shapes and capacities. 11. Misc. Fittings Tees, Bends, Reducers, Adaptors, 'Y' types, Hose Connectors, Multineck Fittings, Evaporator, Freez, Drying, Cold Trap, Dewar Nitrogen Determination, Micro, Semi Micro, Vacuum, Guage etc. Burette, Pipette, Graduated & Volumetric Glass Items 12. Units Distillation, Reaction, Stirring, Fractionation, Esterification, Vacuumm Distillation, Refluxing, Evaporation, Determination, Overhead System, etc, of Various types/shapes, sizes, capacities design. Upto 200 Ltr. Capacity 13. General Any Glass Apparatus, Instrument, Equipment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th stop-cock, bulb-shaped funnels, etc.), cylinders, crucibles, filter crucibles, special flasks (conical, multi-necked, etc.), special spirit burners, mortars, weighing boats, pipettes, vacuum vessels of various specialized types (not falling in Heading 96.17), wash-bottles, stop-cocks, spatulas, jars (filtering, precipitating, multinecked, etc.) muffles, crucible support plates, microscope slides and cover glasses, etc. xx xx xx The heading excludes : (a) Containers for the conveyance or packing of goods (Heading 70.10); ordinary curved watch glasses sometimes used in the laboratory (Heading 70.15, see the Explanatory Note to that heading); chemists' special display bottles and glassware of a kind used for industrial purposes (Heading 70.20). (b) Glass instruments and appliances of Chapter 90, for example, hypodermic syringes, special cannulae and other articles being medical, surgical, dental or veterinary instruments of appliances (Heading 90.18); hydrometers and similar floating instruments, thermometers, pyrometers and barometers of Heading 90.25, instruments and apparatus of Heading 90.26 (for measuring or checking ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rniture, and parts thereof clearly recognisable as such (Chapter 94). (g) Toys, games, Christmas tree decorations, fishing or hunting requisites and other glass articles of Chapter 95. (h) Glass articles of Chapter 96 (e.g., buttons; pen-holders; pencil-holders; pen nibs; lighters; scent sprays; vacuum flasks and other vacuum vessels, complete with cases). (i) Antiques, being articles of an age exceeding 100 years (Heading 97.06)." 12. From the reading of the Explanatory Note 70.17 of the HSN it is apparent that it covers glass articles of a kind in general use in the laboratories including the ones enumerated there and excludes the containers for the conveyance or packing of goods; ordinary curved watch glasses sometimes used in the laboratory and special display bottles and glassware of a kind used for industrial purposes. It also excludes glass instruments and appliances of Chapter 90. Explanatory Note 70.20 of HSN corresponding to Entry 70.15 of the Tariff Act relating to "other articles of glass" covers glass articles not covered by other headings of this Chapter or other Chapters of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....facturing products would cease to be Laboratory Glassware falling under 70.12 and, therefore, must necessarily fall under 70.15. Tribunal is right in observing that the individual pieces or parts which could together form a complete unit are specifically listed as being included in the HSN Heading 70.17. The products excluded are "glassware of a kind used for industrial purposes (Heading 70.20)". The finding recorded by the Commissioner that wherever any glassware is used for industrial use would cease to classify as Laboratory Glassware cannot be accepted. Tariff entry 70.15 is a residuary heading and cannot be resorted to unless a product is incapable of falling under any of the predecessor headings. What is included in this residuary entry is specified in the sub-notes. The specific products includable in the residuary category would not cover Laboratory Glassware falling under Heading 70.12. Heading 70.17 in the HSN does not keep out Laboratory Glassware merely because it is put together in a single unit nor does the residuary heading admit this inclusion. We agree with the finding recorded by the Tribunal that the Laboratory Glassware manufactured by the respondents would not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." 16. In order to make the payment for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise was not levied or paid or short-levied or short-paid or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules made thereunder, with the intent to evade payment of duty. The act of withholding by the assessee has to be positive and deliberate to withhold the information to escape from payment of duty before it is saddled with any liability beyond the period of six months. This Court in the case of Collector of Central Excise v. Chemphar Drugs &....