Optical Co. Vs. Collector of Customs & Anr
 Insc 54 (1
S.N.Phukan Phukan, J.
appeal by special leave is directed against the judgment dated 1-7-1986 of the Customs, Excise and Gold (Control) Appellate
Tribunal, New Delhi.
question raised in this appeal is whether Rough Ophthalmic Blanks falls under
tariff item No.23-A (4) or under Residuary Tariff item No.68 of Central Excise
appellant imported Rough Ophthalmic Blanks and was called upon to pay counter-vailing
duty, which was paid.
Appellate Collector of Customs, Mumbai in another appeal held that Rough
Ophthalmic Blanks could be charged to duty only under Residuary Tariff item
No.68. The appellant, therefore, applied to the Assistant Collector of Customs
(Incharge of Refund), Madras claiming refund of the above
counter-vailing duty, which was rejected. The appeal and the review filed by
the appellant were also dismissed.
the appellant filed the appeal before the Customs, Excise and Gold (Control)
Appellate Tribunal, New
Delhi. The Tribunal
heard the appeal filed by the appellant along with other appeals and dismissed
the appeal of the appellant by the impugned judgment dated 1.7.1986.
facts are not disputed that Rough Ophthalmic Blanks with optical properties are
manufactured out of combination of highly purified form of raw glass and other
materials such as silica, alumina, sodium potassium and rare earths etc. after
technical, chemical and thermal processes.
Tribunal rejected the contention on behalf of appellant that Rough Ophthalmic
Blanks are not imported as glass simpliciter but as a special commodity for the
purpose of manufacture of spectacle lenses. According to Tribunal, the true
test for classification is not the actual process adopted for manufacture but
the identity of the goods with the relevant description or definition in the
First Schedule to the Act or failing that, in terms of commercial parlance and
further that the existence or otherwise of optical properties, as distinguished
from the exact specification required for optical glass, is no criterion for
inclusion in, or exclusion out of the above Item. The Tribunal also referred to
Indian Standard Glossary of terms relating to glass and glassware and after
discussion did not accept the contention on behalf of the appellant that Rough
Ophthalmic Blanks though made of glass are not known in the trade as glass.
counsel for the appellant has placed reliance on other authorities to explain
how Rough Ophthalmic Blanks are made from glass. In our opinion it is not
necessary to go into these authorities as we have already explained how Rough
Ophthalmic Blanks are made and this is not disputed.
to learned counsel for revenue, Rough Ophthalmic Blanks would fall under the
above Tariff Item 23-A (4), as these are articles of glass.
Item 23-A (4) after amendment on 1.3.1979 read as follows:- other glass, glass
ware including tableware Tariff Item 68 is of residuary character and relates
to all other goods not elsewhere specified. The rate of duty is higher if the
product falls under Tariff Item No.23A (4) then if it fell under Tariff Item
settled position of law that in interpreting items in Status like Excise Acts
or Sales Tax Acts resorts should be had not to the scientific or technical
meaning of the terms or expressions used but how is the product identified by the
class or section of people dealing with or using the product, however, if any
term or expression has been defined in the enactment then it must be understood
in the sense in which it is so defined. It is also a common experience that the
identity of an article is associated with its primary function inasmuch as a
customer buys it to perform a specific function from it.
was important by the appellant was not glass simplicitor but Rough Optical
Blanks. We have already referred that Rough Optical Blanks with optical
properties are manufactured out of combination of highly purified raw glass and
other material after highly technical, chemical and thermal process.
general merchant dealing in glass or tableware does not deal in articles like
Rough Optical Blanks with optical properties, which may be used for making
spectacles. The functional character of Rough Optical Blanks is different from
glass or glassware, as these commodities are used for different purpose viz.
making of optical lenses, etc.
Blanks are purchased by manufacturer of spectacles for making spectacle lenses
not for the purpose of other glasses or glassware including tableware.
M/s. Indo International Industries versus Commissioner of Sales Tax, Uttar
Pradesh, AIR  SC 1079, a three judge Bench of this Court considered the
entry glassware falling within Entry No.39 of First Schedule of U.P. Sales Tax
Act and held that clinical syringes would not fall under the said entry. It was
also held that in commercial sense glassware would never comprise articles like
clinical syringes, thermometer, etc., which have specialized significance and
utility. In this appeal also Rough Optical Blanks has specialized utility and,
therefore, would not come under Tariff Item No.23A (4).
Glass Industries (Pvt.) Ltd. versus Collector of Central Excise  3 SCC
480, the Bench of this court held that glass mirror cannot be classified as
other glass or glassware set forth in Tariff Item 23-A (4) and must, therefore,
fall under the residuary Tariff Item 68 of the First Schedule to the Act.
the reasons stated above, we have no hesitation to hold that Rough Optical
Blanks would not come under Tariff Item No.23A (4) and will come under
Residuary Tariff Item No.68. Accordingly we hold that the appeal has merit and
it is allowed by setting aside the impugned judgment. In the facts and
circumstances of the case we direct the parties to bear their own costs.