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The actual amount of excise duty payable on excisable goods is, inter alia, dependent upon
the rate of duty. The rate of duty is determinable on the basis of classification of goods.
(ii)
The classification of goods is also required to be decided for the purposes of determining
eligibility to exemptions, most of which are with reference to the Tariff headings or sub
headings.
Second Schedule
Third Schedule
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Central Excise
(i)
(ii) Chapters: Each section is divided into various chapters and sub-chapters.
(iii) Chapter notes: They are mentioned at the beginning of each chapter. These notes have
been given statutory backing and have been incorporated at the top of each Chapter.
(iv) Heading: Each chapter and sub-chapter is further divided into various heading
depending upon the different types of goods belonging to the same class of products.
(v) Sub-heading: Each heading is further divided into various sub-heading.
(vi) Rules of Interpretation and General explanatory notes
Along the lines of HSN, the Excise tariff has a set of Rules of Interpretation for the
interpretation of First schedule and General Explanatory notes.
(i)
2.3
The Explanatory Notes to the HSN are the official notes issued by the Customs Co-operation
Council, Brussels.
(ii) Explain and clarify the scope of headings of HSN
They explain and clarify the scope and extent of each and every heading of the HSN, on the
basis of which the present Central Excise Tariff has been patterned.
(iii) Do not have a legal backing-are only of persuasive value
It is to be remembered that the Explanatory Notes do not have legal backing, unlike the
Chapter Notes and Section Notes contained in the Tariff. Consequently, these Explanatory
Notes are only of persuasive value and can be used as an aid to classification of goods when
there is ambiguity as to the scope of the entry.
(iv) Can be resorted to only in case of ambiguity in tariff items in Central Excise Tariff
When there is no ambiguity about the scope of the entry, the classification has to be
done as per the tariff entry itself.
[G.M. Pens International Ltd. v. CC (Sea Port), Chennai, 2005 (187) E.L.T. 180 (Tri. - LB)]
Illustration
Product: Hot air generators
First Heading: 7322
Radiators for central heating, not electrically, heated, and parts thereof, or iron or steel; air heaters
and hot air distributors which can also distribute fresh or conditioned air, not electrically heated,
incorporating a motor-driven fan or blower, and parts thereof, of iron or steel.
Second Heading: 8419
Machinery, plant or laboratory equipment whether or not electrically heated, for the treatment
of materials by a process involving a change of temperature such as heating, cooking,
roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating,
vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic
purposes, instantaneous or storage water heaters, non-electric.
Classification of hot air generators: Heading no. 7322 expressly covers air heaters. Since
the said tariff entry is clear about the scope, the hot air generators are classifiable under the
heading 7322 and there is no need to refer to Explanatory notes to HSN.
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Central Excise
2.
2.5
2.4.2 RULE 2
RULE 2(a): CLASSIFICATION OF INCOMPLETE/UNFINISHED ARTICLES
(i) Any reference in a heading to an article shall be taken to include a reference to that
article incomplete or unfinished, provided that, as presented; the incomplete or unfinished
article has the essential character of the complete or finished article.
(ii) It shall also be taken to include a reference to that article complete or finished (or falling to be
classified as complete or finished by virtue of this rule), presented unassembled or dis-assembled.
Analysis
(i)
(ii) Any reference to goods of a given material or substance shall be taken to include a
reference to goods consisting wholly or partly of such material or substance.
(iii) The classification of goods consisting of more than one material or substance shall be
according to the principles of rule 3.
Analysis
The following propositions are laid out by the above rule:(a) Any reference to a material or substance would refer to mixture or combination of that
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Central Excise
material or substance.
(b) Any reference to goods containing a particular material or substance would include a
reference to goods consisting wholly or partly of such specified material or substance.
Examples
(a) The term coffee will include coffee mixed with chicory.
(b) Natural rubber will cover a mixture of natural and synthetic rubber.
2.4.3 Rule 3: Classification in Case Goods are Classifiable under two or More Headings
The application of this rule arises when the goods consists of more than one material or substance.
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable
under two or more headings, classification shall be effected as follows:
Rule 3(a) Specific over general
(i)
The heading which provides the most specific description shall be preferred to headings
providing a more general description.
(ii) However, when two or more headings each refer to part only of the materials or
substances contained in mixed or composite goods or to part only of the items in a set up
for retail sale, those headings are to be regarded as equally specific in relation to those
goods, even if one of them gives a more complete or precise description of the goods.
Analysis
The heading that provides a more specific description should be preferred over the heading
that provides a general description.
Relevant case laws:(a) Speedway Rubber Co. v. CCE 2002 (143) E.L.T. 8 (S.C.)
Supreme Court held that heading which provides the most specific description shall be
preferred to headings providing a more general description.
(b) A. Nagaraju Bros v. State of Andhra Pradesh 1994 (72) E.L.T. 801 (S.C.)
Electric shaving machine was classifiable under following two headings:Heading No. 85.10: Shavers and hair clippers with self contained electric motors
Heading No. 85.09: Electro-mechanical domestic appliances with self-contained electric motor
It was held that the said product was classifiable under heading No. 85.10 as heading
No. 85.10 is more specific as compared to heading No. 85.09.
(c) Plasmac Machinery Mfg Co. Ltd. v. CCE 1991 (51) E.L.T. 161 (S.C.)
Specific heading should be preferred to general.
Rule 3(b) Essential character principle
Mixtures, composite goods consisting of different materials or made up of different
2.7
components, and goods put up in sets for retail sale, which cannot be classified with reference
to (a), shall be classified as if they consisted of material which gives them their essential
character, in so far as this criterion is applicable.
Analysis
Sub-rule (b) would apply only if the goods cannot be classified under sub-rule (a). This subrule provides that composite goods should be classified on the basis of that material or
substance that gives it its essential character.
Relevant case law
It was held that in order to find out whether the incomplete article as imported has the
essential character of the completed article, the tests to be applied would be whether the
imported article has attained the approximate shape or outline of the finished article or part
and whether it can only be used for completion into the particular finished article [BHEL v.
CCus 1987 (28) E.L.T. 545 (Tribunal)].
Example
Product: Lead pencil with an eraser at the back.
Classification: Though the above product is composite goods, the essential character is that
it is a pencil and the attachment of eraser at the stub is only for the purpose of adding
convenience to the user. Therefore, it shall be classified as a pencil and not as an eraser.
Rule 3(c) Latter the better
When goods cannot be classified by reference to (a) or (b), they shall be classified under the
heading which occurs last in numerical order among those which equally merit consideration.
Analysis
If both sub-rules (a) and (b) fail to classify the goods in question, then resort may be had to
sub-rule (c), which provides that composite goods shall be classified on the basis of the
heading that occurs last in numerical order.
Relevant case laws
1.
2.
Artherton Engg. Pvt. Ltd. v. CCus 2001 (129) E.L.T. 502 (Tribunal)
Rule 3(c) of the Rules of Interpretation comes into operation only if goods cannot be
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Central Excise
classified by following rule 3(a) & 3(b).
2.4.4 RULE 4: AKIN RULE : Goods which cannot be classified in accordance with the above
rules shall be classified under the heading appropriate to the goods to which they are most akin.
Analysis
This rule is popularly referred to as Akin rule. This rule specifies that where goods cannot be
classified according to any of the above principles, then the goods shall be classified under
the heading under which other goods, which are mostly similar to the goods in question (akin
goods), are classified.
Example
Product: Plastic films used to filter or remove the glare of the sun light, pasted on car glass
windows, window panes etc.
Classification: These goods do not find a specific entry in the tariff schedule. However,
heading 3925 30 00 covers Builders wares of plastic not elsewhere specified shutters,
blinds (including Venetian blinds). Even though the product in question is not a builders ware,
they are most akin to plastic blinds and hence it can be classified under 3925 30 00 heading.
2.4.5 RULE 5 : In addition to the foregoing provisions, the following rules shall apply in
respect of goods referred to therein:
(a) Classification of cases/containers used for packaging of goods
Camera cases, musical instrument cases, gun cases, drawing instrument cases,
necklace cases and similar containers shall be classified with a specific article or a set of
articles when of a kind normally sold therewith.
Conditions to be fulfilled:(i)
(ii) These cases/containers are suitable for long term use and presented with the
articles for which they are intended.
This rule does not, however, apply to containers which give the whole of its essential
character.
(b) Classification of packing materials and packing containers
Subject to the provisions of (a) above, packing materials and packing containers
presented with the goods therein shall be classified with the goods, if they are of a kind
normally used for packing such goods.
However this provision does not apply when such packing material or packing
containers are clearly suitable of repetitive use.
Analysis
This rule lays down that:(i)
Cases which are specially designed or fitted to contain a specific article and given with
2.9
the articles for which they are intended shall follow the classification of the items which
are packed.
(ii) The packing materials and containers cleared along with the goods are classifiable with
the goods.
Example: Leather cases, which are normally supplied along with the goods, however
costly they may be, need not be treated separately for the purpose of classification.
Exceptions to rule 5
(a) Durable containers capable of repetitive use should be classified separately.
Example: Gas cylinders are meant for repetitive use and therefore cannot be classifiable
along with gas.
(b) When packing material itself gives the essential character as a whole.
2.4.6 RULE 6: ONLY SUB-HEADINGS AT THE SAME LEVEL ARE COMPARABLE
(i)
For legal purposes, the classification of goods in the sub-headings of a heading shall be
determined according to the terms of those sub-headings and any related sub-heading
notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
(ii) For the purposes of this rule, the relative section and chapter notes also apply unless the
context otherwise requires.
The main proposition laid down by this rule is that sub-heading at the same level are
comparable. This implies that a sub-heading can be compared only with another sub-heading
within the same heading.
Where in column (2) of this Schedule, the description of an article or group of articles
under a heading is preceded by -, the said article or group of articles shall be taken to
be a sub-classification of the article or group of articles covered by the said heading.
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Central Excise
indicates that duty on the goods shall be charged on the value of the goods* on the basis
of the percentage specified.
*The value of goods (referred to above) is the value fixed, defined or deemed to be, as
the case may be, under or in:(i)
2.
The list of tariff provisions is divided into Sections, Chapters and Sub-Chapters
3.
In column (3), the standard unit of quantity is specified for each tariff item to facilitate the
collection, comparison and analysis of trade statistics.
2.11
2.
3.
Chemical and Fibres of India Ltd. v. U.O.I. 1997 (89) E.L.T. 633 (SC)
Tariff Entry using commercial words to be interpreted as understood in the trade. A
different approach may be required where strictly technical or scientific words are used.
4.
5.
Shree Baidyanath Ayurved Bhavan Ltd v. CCE 1996 (83) E.L.T. 492 (SC)
Scientific and technical meaning of the terms and expressions used in the tax laws like
Excise Act should not be resorted to. Goods should be classified according to the popular
meaning attached to them by those using the product.
6.
(ii) When certain goods are prima facie covered by the generic description, the burden to
prove that they are not so covered would be on the person claiming so.
(iii) To sum up, the burden to prove a particular classification is initially on the Department
and once it is discharged, the onus shifts to the assessee, because it is he who has
exclusive and special knowledge about the product produced by him.
Relevant case laws
1.
Kirloskar Oil Engines Ltd. v. Union of India (1991) (51) ELT 334
It is well settled that the burden to establish that certain goods can be classified and
excise duty can be levied under a particular tariff item is entirely on the Department.
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2.
Central Excise
Union of India v. Sahney Steel And Press Works Ltd. (1992) (58) ELT 38
It was held by the Tribunal that the burden was on the authorities to establish that
particular goods fell within a particular item of the Tariff.
3.
4.
2.
Naffar Chandra Jute Mills Ltd. v. Asst. CCE 1993 (66) E.L.T. 574 (Cal.)
The Calcutta High Court has held that the Rules for Interpretation of the Central Excise
Tariff are applicable for interpreting exemption notifications as well.
3.
4.
2.13
2.
3.
4.
5.
6.
2.14
Central Excise
(1) Where the Central Government is satisfied that it is necessary so to do in the public
interest, it may, by notification in the Official Gazette, amend the First Schedule and the
Second Schedule. However, such amendment shall not alter or affect in any manner the rates
specified in the First Schedule and the Second Schedule in respect of goods at which duties of
excise shall be leviable on the goods under the Central Excise Act, 1944.
(2) Such notifications shall be laid before each House of Parliament, while it is in session, for
a total period of thirty days as soon as it is issued. These thirty days may be comprised in one
session or in two or more successive sessions. If before the expiry of the session, immediately
following the session or the successive sessions aforesaid, both Houses agree in making any
modification in the notification or both Houses agree that the notification should not be issued,
the notification shall thereafter have effect only in such modified form or be of no effect, as the
case may be. However, any such modification or annulment shall be without prejudice to the
validity of anything previously done under that notification.
2.9 Clarifications
2.9.1 Classification of coconut oil packed in small containers
Issue
Under which of the following two chapters, the coconut oil sold in small packs (upto 200
ml), should be classified:
Clarification
Classification of coconut oil
packed in small containers
*Annexure A
In this case, the classification of coconut oil would depend upon the fact as to how the
majority of the customers use it. Therefore, it would be classified as follows:S.No.
1.
2.
2.15
Chapter Note 2 of Chapter 33 prescribes a condition that heading No. 3305 (which
covers hair oil also) applies to products put up in packing of a kind sold by retail
for such use.
2.
Section Note 2 to Section VI also provides that goods classifiable in heading 3305
by reason of being put up for retail sales are to be classified in the said heading and
in no other heading of the schedule. This Section Note further supports the
aforesaid interpretation.
[Circular No. 890/10/2009 CX dated 03.06.2009]
2.9.2 Classification of textile quilted products like quilts, quilted bed spreads, etc.
Issue
Clarification
Under which of the following two headings It is clarified that these products will be
the textile quilted products like quilts, classified under heading 9404.
quilted bed spreads, etc. would be
classified:(i) Heading 9404
(ii) Heading 5811
Reason for such classification:1.
Heading 5811 covers quilted textile products which are further used in the manufacture
of quilts, quilted bedspreads, etc. The term used in the manufacture in heading 5811
implies that heading 5811 covers only materials which are further used in making of
quilted final products like bedding or bedspreads.
While it is heading 9404 which covers the final finished products like quilts and
other articles of bedding and furnishing.
2.
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Central Excise
These materials are commonly used in the manufacture of quilted garments,
bedding or bedspreads, mattress pads , clothing, curtains, place-mats,
underpads (silencers) for table linen etc.
The heading does not cover:
a.
b.
c.
d.
2.
Quilts, quilted bedspread etc. are articles of bedding and are covered under
the Explanation (B)(2) as mentioned above.
[Circular No. 903/23/2009-CX dated 20.10.2009]
2.9.3 Classification of Polyester Staple Fibre manufactured out of PET scrap and waste
bottles
It has been clarified that polyester staple fibre manufactured out of PET scrap and waste
bottles is nothing but a textile material and hence will be classified as textile material
under heading 55032000 under Section XI and not as article of plastic in Chapter 39.
[Circular No. 929/19/2010-CX dated 29.06.2010]
Note - The headings cited in some of the case laws mentioned in this chapter may not
co-relate with the headings of the present Excise Tariff as these cases relate to an
earlier point of time.