ORIENT CERAMICS & INDIA LTD.versusCOMMISSIONER OF CUSTOMS, NEW DELHI

                         [2008] 7 S.C.R. 70


A            ORIENT CERAMICS & INDIA LTD.
                             v.
         COMMISSIONER OF CUSTOMS, NEW DELHI
              (Civil Appeal No. 5799 of 2002)
                         APRIL 29, 2008
B                                                                   ''
                                                                    ).
           [ASHOK BHAN AND J.M. PANCHAL, JJ.]

        Central Excise Taritr Act, 1985 - Tariff heading 6907.90
  or 6908. 90 - Classification under - Import of tiles - Claim
c that imported goods were unglazed porcelain tiles classifiable
  under tariff heading 6907. 90 - Held: In view of test report of
  Central Revenue Control Laboratory, tiles imported by
  assessee were glazed tiles, classifiable under tariff heading
  6908. 90 - License was required for import for such goods -
  Also tiles manufactured by assessee were not 'other ceramic
D
  articles' under tariff entry 6914.10.                             )_

      The question which arose for consideration in this
  appeal was whether the goods imported by the assessee
  were unglazed porcelain tiles classifiable under heading
E 6907.90 and as such would fall under the free list and
  could be imported without license.
        Dismissing the appeal, the Court
         HELD: 1.1 From the reading of the report of Central
F Revenue Control Laboratory, and the distinction between           r
  the unglazed and glazed tiles pointed out by the
  appellants in their correspondence with the Department
  that the porcelain unglazed tiles are almost completely
  vitrified and would absorb no water (impermeable), and
  glazed tiles have a porous body permeable to water, it
G
  is evident that the tiles imported by the appellants were
  not unglazed but glazed which was classifiable under
  tariff heading 6908.90. License of import for such goods
  '!Vas required, as per policy, before importing which the
H                                70
      ORIENT CERAMICS & INDIA LTD. v. COMMISSIONER             71
                OF CUSTOMS, NEW DELHI

      appellants admittedly did not have. Reasons recorded A
      by the Tribunal in affirming the order passed by the
      Commissioner of Customs are perfectly valid and
      there is no reason to disagree with the same. [Paras 8
      and 9] [74-G; 75-A-E]
' '
-(         1.2 The submission of the appellants in order to B
      wriggle out of the restricted list of the imports, that if the
      goods were not classifiable under tariff heading 6907.90,
      then the goods were classifiable under tariff item 6914.10
      as per classification issued by the Director General of
      Foreign Trade (DGFT) cannot be accepted. Entry 6914 c
      pertains to 'other ceramic articles' and tariff sub-heading
      6914.10 deals with other ceramic articles made of
      'porcelain or china'. The goods imported by the appellants
      were classifiable under tariff heading 6908.90, the same
      cannot be brought under the residuary clause 6914. D
..r   Appellants in their Bills of Entry did not claim classification
      under heading 6914.10. They claimed the classification
      under tariff heading 6907 .90 as unglazed tiles. It had never
      been their case that the goods were not tiles or that they
      were "other ceramic articles" referred to in the DGFT E
      classification under sub-heading 6914.10. [Para 10]
      [75-E, F; 76-C, D, E]
            1.3 While ceramics are made from minerals such as
      clay, feldspar, silica and talc, the porcelain is made out
      from a mixture of ingredients like kaolin, petuntse. Kaolin F
      is a pure white clay and petuntse is a type of feldspar found
      only in China. It has not been proved by the appellants
      that the tiles imported by it were made from the mixture of
      ingredients like kaoline and petuntse. His case was that
      tiles imported by it were unglazed ceramic tiles. Since, G
      the material which goes into production in the ceramic
>-    tiles and porcelain tiles is different, in the absence of any
      material to show that the tiles manufactured by the
      appellants were porcelain tiles made out of kaolin and
      petuntse, it cannot be held that the tiles imported by the H
    72       SUPREME COURT REPORTS                  (2008] 7 S.C.R.


A   appellants were other ceramic articles falling under tariff
    entry 6914.10. [Para 10] [75-G; 76-A, B]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5799 of 2002.

B        From the final Order No. 126/2002-D dated 8.5.2002 of         ..
    the Customs, Excise & Gold (Control) Appellate Tribunal, New       ).

    Delhi in Appeal No. C/411/2001-D.

        A.R. Mahav Rao, Alok Yadav (for M.P. Devanath) for the
    Appellants.
c
        T.S. Doabia, Vikas Sharma and B.V. Bairam Das for the
    Respondent.

         The Judgment of the Court was delivered by

        BHAN, J. 1. This Appeal has been filed u/s. 35L(b) of the
D
  Central Excise Act, 1944 (h,ereinafter referred to as the 'Act')
                                                                       )_
  against the Final Order No. 126/2002-D dated 08.05.2002 in
  Appeal No. C/411 /2001-D passed by the Customs, Excise and
  Gold (Control) Appellate Tribunal, New Delhi (hereinafter
  referred to as 'Tribunal') rejecting the appeal filed by the
E
  appellants.

         2. Appellants imported two consignments of unglazed
  porcelain tiles, as per appellants, vide Bills of Entry No. 113197
  dated 24.10.2000 and No. 113056 dated 23.10.2000. In these
F two Bills of Entry, the appellants claimed classification of the
  tiles under sub-heading 6907.90 of the Customs Tariff Schedule.
  Since goods falling under sub-heading 6907.90 were fr 0 ely
  importable without any license, appellants sought clearance of
  the same on payment of appropriate customs duty in terms of
G para 5.1 of the Exim Policy 1997-2002. The Bill of Entry was
  assessed as per declaration made by the appellants. After the
  payment of duty so assessed, the Bill of Entry was presented in
                                                                       ·"'-
  the import shed for physical examination where the goods were
  examined in the presence of the appellant's representative. On
  examination, it appeared that the goods were glazed tiles. Such
H
        ORIENT CERAMICS & INDIA LTD. v. COMMISSIONER                   73
              OF CUSTOMS, NEW DELHI [BHAN, J.]

        tiles were classifiable under heading 6908.90 of the Customs         A
        Tariff Schedule and being restricted for importation as per
        classification, could not be imported without proper license. The
        appellants requested for the provisional release of the goods
' '     against the P.O. test bond pending finalization as per test report
 -(
        from Central Revenue Control Laboratory (hereinafter referred        B
        to as the "CRCL"). The request of the appellants was accepted
        and the goods were released to them provisionally.

              3. The representative samples of the goods were drawn
        and sealed in their presence and sent to CRCL for test. The
        test report revealed that the goods had characteristics of glazed    c
        tiles. Show cause notice was accordingly issued to the
        appellants for the confiscation of the goods and for imposition
        of penalty on them. The appellants, however, contested the
        correctness of that notice and also submitted manufacturing
,.(     process of the unglazed tiles. It was also requested by the D
        appellants that the goods may be sent to the Central Glass and
        Ceramics Research Institute, Calcutta for test. The request
        made by the appellants for sending the goods to Central Glass
        and Ceramics Research Institute, Calcutta was rejected. After
        considering the material on record, the Commissioner of E
        Customs, held the goods to be porcelain glazed tiles and
        ordered confiscation of the same having been imported without
        license and also imposed penalty of Rs. 10,00,000/- on the
        appellants .
...,,
             4. Aggrieved against the order passed by the                    F
        Commissioner of Customs, the appellants filed appeals before
        the Tribunal which have been dismissed by the impugned order.
              5. The point involved in the present appeal relates to the
        classification of goods in question under Indian Trade
                                                                           G
>-      Classification (Harmonized System) [ITC (HS)] Policy. There is
        no dispute regarding rate of duty payable thereon. But depending
        on the classification, the goods will either fall under restricted
        list or free list of import. As per the appellants, the imported
        goods were unglazed porcelain tiles classifiable under heading
                                                                           H
        74       SUPREME COURT REPORTS                    [2008) 7 S.C.R.


A 6907.90 and as such, could be imported without license.
       ·. 6. To substantiate this plea raised by the appellants,
  reliance was pfaced on the manufacturing process supplied to
  the appellants by the manufacturer and the distinction between
  unglazed and glazed tiles. Admittedly, the representative                  ';
B samples of the goods were drawn and sealed in the presence                 '>-
  of the appellants. The samples were sent to CRCL for 2nd time
  for test. The CRCL again pointed out that the samples had the
  characteristics of glazed tiles. The second report was given by
  the Director oft.he CRCL, which was conveyed to the appellants
c vide letter dated 27.02.2001. The relevant portion of the CRCL
  report reads as under:-
             "The imperviousness test and chemical resistance test on
             the samples, have been concluded in this laboratory as
             prescribed in the ASTM Methods and found to satisfy the
D
             conditions as laid down in respect of glazed tiles. The test    ~

             for water absorption as laid down in the LS. has also been
             conducted and found to absorb appreciable quantity of
             water. In view of above facts it is clear that the samples
             under reference are other than unglazed ceramic tiles as
E            claimed and hence the test as per ISO as indicated in
             your letter may not be necessary for fu.rther confirmation in
             this regard.ff
         7. The appellants in their reply to the show cause notice
F have brought out the distinction between unglazed and glazed
  tiles as under: -
             "... While porcelain unglazed tiles are almost completely
             vitrified and would absorb no water (impermeable) glazed
             tiles have a porous body permeable to water... "
G
           8. The manufacturing process supplied by the
                                                                             ~
     manufacturer which was in turn given to the Customs Authorities
     by the appellants vide lett1~r dated 23.12.2000 also brings out
    1the distinction between the~ glazed and unglazed tiles. Even in
    .the subsequent communication dated 30.01.2001, the same
H   I
                 ORIENT CERAMICS & INDIA LTD. v. COMMISSIONER                   75
                       OF CUSTOMS, NEW DELHI [BHAN, J.]
,,..
       .r
                 very distinction was reiterated. The relevant portion of the letter A
                 reads as under: -
                      ".. .There are clear distinctions between porcelain unglazed
                      tiles and glazed tiles from the point of view of their nature
       ' '            and compositions. While porcelain unglazed tiles are
       ~
                      almost completely vitrified and would absorb no water           B
                      (impermeable), glazed tiles have a porous body
                      permeable to water... "

                        9. From the reading of the report of CRCL and the
                 distinction between the unglazed and glazed tiles pointed out
                 by the appellants in their correspondence with the Department;
                                                                                      c
                 it is evident that the imported goods were not unglazed but
                 glazed which was classifiable under tariff heading 6908.90.
                 License of import for such goods was required, as per policy,
                 before importing which the appellants admittedly did not have.
                                                                                      D
       x         In view of the report submitte(j by the CRCL, which is an expert
                 body, we are of the opinion that the tiles imported by the
                 appellants were glazed tiles and were liable to be classified
                 under tariff heading 6908.90. Reasons recorded by the Tribunal
                 in affirming the order passed by the Commissioner of Customs
                 are perfectly valid and we do not find any reason to disagree        E
                 with the same.
                       10. Counsel for the appellants, in order to wriggle out of
                 the restricted list of the imports, then contended that if the goods
       --.       were not classifiable under tariff heading 6907.90, then the F
                 goods were classifiable under tariff item 6914.10 as per
                 classification issued by the Director General of Foreign Trade
                 (DGFT). In ground 'C' of the grounds of appeal, the appellant
                 has itself admitted that the difference between the ceramics
                 and porcelain is brought out from the technical literature from
                                                                                      G
                 the World Book Encyclopedia, copies of which have been
                 attached as annexure to the appeal. While ceramics are made
                 from minerals such as clay, feldspar, silica and talc, the porcelain
                 is made out from a mixture of ingredients like kaolin, petuntse.
                 Kaolin is a pure white clay and petuntse is a type of feldspar
                                                                                      H
             I


             \
    76        SUPREME COURT REPORTS                    [2008] 7 S.C.R.
                                                                          -(


A found only in China. It has not been proved by the appellants
  that the tiles imported by i1t were made from the mixture of
  ingredients like kaoline and petuntse. His case was that tiles
  imported by it were unglazed ceramic tiles. Since, the material
  which goes into production in the ceramic tiles and porcelain            .'
B tiles is different, in the absence of any material to show that the      >-
  tiles manufactured by the appellants were porcelain tiles made
  out of kaolin and petuntse, it cannot be held that the tiles imported
  by the appellants were other ceramic articles falling under tariff
  entry 6914.10. We do not find any substance in the plea that the
c goods imported by the appellants would fall under Entry 6914.
  Entry 6914 pertains to 'other ceramic articles' and tariff sub-
  heading 6914.10 deals with other ceramic articles made of
  'porcelain or china'. We have come to the conclusion that the
  goods imported by the appellants were classifiable under tariff
  heading 6908.90. As the iteims imported by the appellants are
D                                                                          j_
  specifically covered by tariff heading 6908.90, the same cannot
  be brought under the residuary clause 6914. Appellants, in their
  Bills of Entry, did not claim classification under heading 6914.10.
  They claimed the classification under tariff heading 6907 .90 as
  unglazed tiles. It had never been their case that the goods were
E not tiles or that they were "other ceramic articles" referred to in
  the DGFT classification under sub-heading 6914.10.
         11. For the reasons stated above, we do not find any merit
  in this appeal and dismiss the same leaving the parties to bear
F their own costs.
  N.J.                                         Appeal dismissed.