CX - Plywood laminated with plasticized paper is classifiable under Heading 44.08 of first schedule & cannot be treated as article of wood under Heading 44.10 - Revenue's appeal allowed: CESTAT
By TIOL News Service
CHANDIGARH, JAN 21, 2017: REVENUE is in appeal against the order dated 28.07.2006 passed by Commissioner of Central Excise (Appeals) Delhi-III. The issue to be decided is the classification of plywood laminated with plasticized paper during 01.07.2004 to 28.02.2005.
The respondents are engaged in the manufacture of plywood/plyboard and plywood laminated with plasticized paper falling under chapter 44 of the erstwhile first schedule to the Central Excise Tariff Act, 1985. They wanted to include plywood laminated plasticized paper in their Central Excise Registration certificate as articles of wood, not elsewhere specified-others (Plasticized paper coated laminated plywood) under heading No. 4410.90 of the First Schedule to the Central Excise Tariff Act 1985. They started paying Central Excise Duty on the plywood manufactured and consumed captively by them in the manufacture of the plasticized paper and cleared the same at nil rate of duty under in the notification 10/03-CE dated 01.03.2003, classifying the same under sub heading No. 4410.90. The Central Excise officers after considering the manufacturing process felt that the product manufactured by the respondent would fall under sub Heading No. 4408.90 of the erstwhile first schedule to the Central Excise Tariff Act, 1985, which is analogous to the sub heading No. 4412.99.10 of the new schedule to the Central Excise Tariff Act, 1985 effective from 01.03.2005. Accordingly, show cause notice was issued and same was adjudicated. The Adjudicating Authority determined the classification under 441299.10 in the newly adopted Central Excise Tariff w.e.f. 01.03.2005 and under CETH 4408.90 in the Central Excise Tariff prior to 01.03.2005. The demand of Rs. 16,50,254/- was confirmed along with the interest and penalty of Rs. 5 Lakh was imposed on the respondent. In appeal, the order of the Adjudicating Authority was set aside by the Commissioner (Appeal), who held that the impugned goods were classifiable under 4410.90 as articles of wood, not elsewhere specified. Hence, the Revenue is in appeal against the said order before us.
The A.R. for the Revenue submitted that the issue is no longer res integra in the light of judgment of this Tribunal in the case of Galaxy Plywood Inds. P. Ltd Vs. Commr. of C. Ex., Panchkula - 2016 (332) E.L.T. 132 (Tri.-Del.). In the said judgment, it was held inter alia that:
"The Chapter Heading 44.08 specifically speaks about plywood, veneered panels and similar laminated wood. Whereas, the Chapter Heading 44.10 speaks about articles of wood not elsewhere specified. Undeniably, the impugned product does not fall into article of wood'. So the product which is plasticized plywood is classifiable under Chapter Heading 44.08 only. Moreover, this Tribunal in the case of Permali Wallace Pvt. Ltd. reported in 2011 (274) E.L.T, 558 (Tri.Del.) examined the scope of Heading 44.08 along with Chapter Note 5 and held veneered sheets will be classified therein. In the light of the observations made by the Apex Court in the case of CCE, Noida Vs. Kitply Industries Ltd. and apply the same, we are of the considered view, that the impugned product is classifiable under Chapter Heading 44.08. The issue is answered in favour of the Revenue."
Following the judgment relied upon by the Revenue, which relates to identical product during the same period, the Tribunal allowed the appeal of the Revenue.
(See 2017-TIOL-192-CESTAT-CHD)
