Commissioner Of Central Excise vs Kerala State Bamboo Corporation Ltd

[Arising out of Order-in-Appeal No. 116/2002 dated 22/02/2002 passed by the Commissioner of Customs & Central Excise, Cochin]

For approval and signature:

HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Central Excise C.R. Building, I.S. Press Road Cochin - 18 Appellant(s)

Versus

Kerala State Bamboo Corporation Ltd. Bamboo Board Factory, Angamally South Kerala Respondent(s)

Appearance:

Shri Mohd Yusuf, DR For the Appellant

Shri G. Subramaniam, Authorized Rep.

For the Respondent

Date of Hearing: 22/09/2015 Date of Decision: 22/09/2015 CORAM:

HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER

Final Order No. 21983 / 2015

Per: ARCHANA WADHWA

Being aggrieved with the order passed by Commissioner (Appeals) vide which he had rejected the Revenues appeal, Revenue has further filed the present appeal.

2. After hearing both sides, duly represented by Shri Mohd Yusuf, DR and Shri G. Subramaniam, Authorized Rep., we find that the dispute in the present appeal relates to the classification of Resin Bonded Bamboo Mats with Veneer in between. Whereas Revenue seeks the classification of the same under Chapter 4408.90 as laminated wood, the lower authorities have upheld the assessees claim of classification as articles of wood under Chapter 4410.90.

3. It is seen that the matter had earlier come up before the Tribunal and was decided vide its Order No. 2469/98 dated 24.11.98. By accepting the assessees stand that goods would fall under Chapter 4410.90, in terms of Note 6 to Chapter 44 of the Central Excise Tariff Act, the matter was remanded to the lower authorities for fresh decision. For better appreciation we reproduce para 5 of the said order.

5. We find that the subject product has been clearly and unambiguously mentioned in sub para (b) of Note (6) inasmuch as that the product confirms squarely and exactly to the products described in the said Note because it is not disputed that these mats are made by compressing two or more plies of only hand-woven bamboo mats having veneers in between, with the aid of resins. In view of the fact the Chapter note (6) clearly applies to this product, therefore there is no further scope for any other interpretation in this regard. We therefore find that the order impugned has not considered the applicability of this Note (6) in details even though the said issue was agitated before the Ld. Collector (Appeals). On the contrary, the Ld. Collector has decided the issue on the ground that the veneers comprising of woods, therefore the product would be classifiable under 4408.90. We find that therefore the order impugned is not a speaking order and as it has not considered as to how the provisions of Note (6) of the Central Excise Tariff Act 1985 is not applicable to this product. This is clear from the fact that the sub para (b) of the said Note (6) clearly recognizes the presence of Veneer in between these bamboo mats and lays down that this product would fall still under 44.10. During de novo adjudication, Commissioner (Appeals) upheld the assessees contention by observing as under:

7. According to the respondents, they glue together Dry Bamboo mats and veneers with formaldehyde resin; that the bamboo mats are articles of wood manufactured by plaiting split bamboo/reeds into mats, the item under consideration is reed plaited mats reinforced by an inner core of veneer bonded together with resin and can be considered as an article of wood, classifiable under heading 4410.90. Even though, as per chapter note (6) as it existed at the material time, any reference to wood applies also to bamboo and other materials of a woody nature, in the instant case it is seen that bamboo/split bamboo are used for making bamboo mats. This can only be termed as article made out of bamboo. Hence the subject goods cannot be termed as wooden lamination, as contended by the revenue in view of the description to similar laminated wood given above. Further it is an established position in law that the classification has to be done by interpretation of the Chapter notes as it existed at the relevant time. In view of para (6) read in confirmation with the HSN, the item would appropriately fall under 4410.90 as articles of wood not elsewhere specified. Revenue has again filed an appeal before the Tribunal.

4. On going through the earlier order of the Tribunal we note that a clear finding stands given that in terms of Chapter Note 6 the goods would be classified properly under heading 4410. The Revenues contention is that the Chapter Note 6 relied upon by the assessee was not in existence during the period 1986-87 i.e. the period involved in the present appeal. The same came into existence w.e.f. 1997. As such it is their contention that the Tribunal relied upon a wrong Chapter Note.

5. On being questioned as to whether the earlier order of the Tribunal was appealed against by the Revenue or not, learned DR fairly agrees that the same was not challenged. As such we are of the view that it becomes binding for the lower authorities to follow the Tribunals order. At this stage we cannot sit in appeal over the earlier order of the Tribunal and it was for the Revenue to contest the same before the higher appellate authority if the reference and reliance to Chapter Note 6 was not appropriate.

6. In view of the above we find no merits in the Revenues appeal and the same is accordingly rejected.

(Order pronounced in open court)

(ASHOK K ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER

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