In Re : M/s. Sika India Private Limited
GST
2018 (8) TMI 393 – APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – 2018 (15) G. S. T. L. 614 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL – AAAR
Dated:- 26-7-2018
Appeal case No. 03/WBAAAR/Appeal/2018
GST
Mr. Rakesh Kumar Sharma, Member And Ms. Smaraki Mahapatra, Member
For The Appellant : Mr. Rahul Lakhwani, Advocate
RULING
This Appeal has been filed by M/S Sika India Private Limited, holding GSTIN 19AAECS1119FIZL (hereinafter referred to as the “Appellant”), on 10.05.2018, against the Ruling dated 09.04.2018, pronounced by the West Bengal Authority for Advance Ruling.
The Appellant is a manufacturer of products used in building construction. One such product is manufactured and marketed by it under the brand name of “SIKA Block Joining Mortar” and is said to be used for joining masonry units like AAC blocks, Concrete blocks, fly ash bricks, etc. The Appellant had approached the We
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“SIKA Block Joining Mortar” under Tariff Heading 3214 90 90. The Appellant had approached the WBAAR for classification of the product in Tariff Heading 3824 50 90 instead of Tariff Heading 3214 90
b. The impugned Ruling dated 09.04.2018, pronounced by the WBAAR, does not specify the basis of classifying the product “SIKA Block Joining Mortar” under Tariff 3214 90 90;
c. The WBAAR has not considered the fact that the Appellant's competitors are marketing similar products under HSN Tariff Heading 3824 50 90 and that the same type of product cannot be classified under two HSN Tariff Headings and thereby, chargeable under two different rates of tax.
3. The Appellant cited following case laws while arguing the case:
a. The Appellant relied on the order of the Commissioner of Sales Tax, West Bengal, passed in case no. 24X/PRO/VAT/16/303 in the matter of M/S UAL Industries Ltd. where the Commissioner of Sales Tax, West Bengal, finds 'dry mix mortar', made by mixing sand, f
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ng preparation'
d. The Appellant cited the judgement in the case of CCE v. Kitply Industries [(2011) 272 ELT 3 (SC)], Tapex Corporation v. CCE [1998 (103) ELT 580 (CEGAT)], Furniture Factory v. CCE [1999(105) ELT 400 (CEGAT)] and Mahindra & Mahindra v. CCE [1999(109) ELT 73S (CEGAT)] to argue that the latter Tariff heading 3824 50 90 will prevail over the earlier tariff heading 3214 90 90.
e. By citing the judgement in the case of CCE v. Minwool Rock Fibres [(2012) 278 ELT 581 (SC)] the Applicant argued that in case ol conflicting tariff heading, the tariff heading which is more beneficial tc Assessee need to be adopted.
4. The core issue involved in this Appeal is whether 'SIKA Block Joining Mortar' manufactured and marketed by the Appellant, is to be classified under Tariff Head 3214 90 10, which the Appellant was declaring voluntarily for the past few years and which the WBAAR held as 3214 90 90 to be the correct classification or Tariff Head 3824 50 90, which the A
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l used
Quantity as percentage
Wallocel (Hydroxyethyl methyl cellulose)
0.1-0.2%
Polymer Powder (Copolymer of venyl acetate and ethylene)
0.2 – 0.6 %
Slag/GGBS (Cement substitute)
15-35%
Ambuja PPC (Cement)
15-35%
Sand-A (Natural silica sand)
20-35%
Sand-B (Natural silica sand)
30-45%
7. Let us now examine the detailed entries under Tariff Heads in dispute here, which are as under:
Tariff Code
Description
3214
Glaziers' putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings; non-refractory surfacing preparations for facades, indoor walls, floors, ceilings or the like.
3214.10
Glaziers' putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings
3214.10.00
Glaziers' putty, grafting putty, resin cements, caulking compounds and other mastics; painters' fillings
3214.90
Other
3214.90.10
Non-refractory surfacing preparations
3214.90.20
Resin cement
321
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for facades, indoor walls, floors, ceilings, etc., it is only used for joining masonry units like AAC blocks, Concrete blocks, fly ash bricks, etc., which qualifies it to be classified under Tariff Head 3824 50 90.
9. From the written submissions of the Appellant and the oral arguments made before us it is clear that the 'SIKA Block Joining Mortar' is non-refractory and that it is not used for preparation of surfaces. Considering the nature, use and commercial identity of the item in question and, notwithstanding the Appellant's earlier voluntary declaration about the classification of the item, we are not inclined to accept its classification under Tariff Item 3214. Instead, it is to be classified under Tariff Item 3824.
10. In view of the above discussions, the Ruling dated 09.04.2018 of the West Bengal Authority for Advance Ruling is modified to the extent that 'SIKA. Block Joining Mortar' is classified under Tariff Item 3824 as notified taxable under Serial n
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