TaxTMI 
TaxTMI 
1990 (4) TMI 163
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....le fibre & imported synthetic staple waste, claiming classification of the blended yarn under Heading 55.05. However, the Department, after subjecting the yarn to chemical analysis, issued a show cause notice to the assessees on 28-4-1987, for assessment under Heading 55.06 on the ground that the chemical test revealed that the yarn contained synthetic staple fibre. 3. In the order-in-original it is stated that in the reply to the show cause notice, the assessees urged - a) that the yarn was manufactured out of artificial staple fibre blended with synthetic staple fibre waste, and synthetic staple fibre and synthetic staple fibre waste were not one and the same. b) that the type of raw material used in the manufacture of particular yarn could not be ascertained by simply analysing the yarn chemically and only a physical inspection/verification of the raw material used for manufacture of yarn could establish its contents; and in support of this contention they quoted the report of the Chemical Examiner, Madras wherein waste fibres were used in the blended yarn ; c) that the final approval given by the proper officer to the C.Ls No.76 &80 of '87 could not be deemed to be ....
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....6 is" synthetic staple fibre. Mere containing of synthetic fibre in the form of waste which is not known as staple fibre will not attract Tariff Heading 55.06, because the words 'staple fibre' appearing after the words 'synthetic' cannot be ignored. If it is a waste fibre or non-staple fibre, as argued by the appellant, of synthetic origin, the use of the same will not take out the yarn of Tariff Heading 55.05, and bring it under Tariff Heading 55.06. Synthetic fibre may be used as obtained from waste fibre, and it cannot be said that synthetic staple fibre has been used under 55.05, because the fibres themselves are classifiable differently. Synthetic staple fibres are being classified under 55.01, whereas waste of synthetic staple fibres are being classified under 55.03. In the absence of evidence that the impugned yarn has been manufactured by utilising synthetic staple fibre, falling under 55.01, the same cannot be classifiable under 55.06. It has necessarily to be classified under 55.05. There is nothing contrary to the above view in the test report of the Chemical Examiner." The Department has preferred the above appeal against this order dated 25-4-1989. 6. We have heard ....
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....le" has a definite connotation in textile industry & is governed by the twin factors of denier & length. The learned advocate points out the mention of denier & length in purchase bills of polyester staple fibre absence of such indication in the bills relating to purchase of polyester cutter waste and polyester drawn waste. He refers to the definition of "staple" & "staple fibre" in several textile encyclopedias and text books on textiles, to emphasise that the word "staple" has a definite meaning in textile parlance. He submits that the test reports refer to staple fibres of varying lengths and that the moment there is a variation in length, the fibre can no longer be a 'staple' fibre so as to bring the yarn within the fold of Heading 55.06. 9. We have heard both sides, carefully considered the submissions & perused the records. The details of test reports of yarn samples are found in Annexure B to the Collector's authorisation. The samples have been described as non-cellulosic synthetic waste/viscose yarn and MM fibre yarn. The purpose of drawal of samples is to test the percentage of synthetic waste & viscose staple fibre, the percentage of non-synthetic waste & viscose. T....
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....tive check. 6. Non-cellulosic synthetic waste/Viscose yarn To find out the %age of non-cellulosic synthetic waste/Viscose. The sample is a double ply spun yarn composed of man-made synthetic staple fibres of non-cellulosic origin (Polyester) and man-made artificial staple fibres of cellulosic origin (Viscose). The percentage of non-cellulosic fibre content by weight on the total fibre content in the sample is 39.2. -do-     7. -do-       The sample is a double ply spun yarn composed of man-made synthetic staple fibres of non-cellulosic origin (Polyester) and man-made artificial staple fibres of cellulosic origin (Viscose). The %age of non-cellulosic fibre content by weight on the total fibre content in the sample is 12.8. 10. Annexure A contains details of test reports of samples of the raw material used in manufacture of the yarn, which are as follows :- Description of samples drawn Purpose for which drawn Findings of the Chemical Examiner (Extract) 1. Non-cellulosic thetic waste   syn To be tested for % age of non-cellulosic synthetic waste The sam....
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.... thin and thick tufts of white staple fibres with cut-ends, laid parallel of lengths varying from 4 to 4.5 cms. It is wholly composed of non-cellulosic fibres (Polyester). It also has a very small quantity of entangled tuft of shinning fibres of cellulosic origin (Viscose). These tufts have some entangled knots and a few of them have dirt and foreign bodies adhering on them in traces. Percentage of polyester received: 97.0 Percentage of Viscose as received: 3.0 Please See note below : NOTE : Fibre waste (soft-waste) has been described under chapter notes to Chapter 55.05 in the Explanatory Notes to the Harmonised commodity description and coding system as follows :-" "-------- relatively long fibres obtained as waste during the formation and processing of filaments, short fibres obtained as waste from the carding (eg. noils, small broken pieces of laps, slivers, or rovings). The samples under reference have the characteristics of waste mentioned above only with respect to length of fibres. 4. Synthetic waste To be tested for %age of noncellulosic synthetic waste The sample is in the form of pale blue coloured ....
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.... synthetic waste The sample is in the form of light blue tinted fibrous mass. It is composed of man-made synthetic staple fibres of non-cellulosic origin (Polyester) and man-made artificial staple fibres of cellulosic origin (Viscose). %age of polyester fibre-59.2 by weight. Please see Note below: - Fibre waste (soft-waste) has been described under Chapter notes to Chapter 55.05 in the Explanatory Notes to the Harmonised Commodity description and coding system. The sample under reference has the characteristics of waste mentioned in the HSN only with respect to length of fibre. 9. Synthetic waste To be tested for % age of synthetic waste The sample is in the form of white fibrous mass. It is composed of artificial staple fibres of cellulosic origin (Viscose) and synthetic staple fibres of non-cellulosic origin (Polyester). %age of polyester fibres :56.7 %age of Viscose fibres : 43.3. 10. 100% Non-Cellulosic synthetic waste To be tested for %age of noncellulosic synthetic waste The sample is in the form of assembled mass composed mainly of small, thin and thick tufts of white staple fibres wit....
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....f non-cellulosic origin (Polyester). Percentage composition being Polyester fibres: .55.5% Viscose fibres : 44.5% 17. 100% Non-cellulosic synthetic waste To be tested for % age of noncellulosic synthetic waste The sample is in the form of white assembled mass composed of small, thin and thick tufts of white staple fibres with cut-ends laid parallel of varying lengths. It is composed wholly of synthetic staple fibres of non-cellulosic origin (Polyester). These tufts have entangled knots and a few of them have dirt and foreign bodies adhering on in traces. 18. -do-   -do-      The sample is in the form of white assembled mass composed mainly of small, thin and thick tufts of white staple fibres with cut-ends laid parallel of varying lengths. It is composed ' wholly of non-cellulosic fibres (Polyester). These tufts have some entangled knots and few of them have dirt and foreign bodies adhering on in traces. 19. -do-     -do- The sample is in the form of white assembled mass composed mainly of small, thin and thick tufts of white staple fibres with cut-ends,laid parallel of leng....
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....ellulosic synthetic waste (100%) To find out the % age of noncellulosic synthetic waste The sample is in the form of white assembled mass composed of small, thin and thick tufts of white staple fibres with cut ends, laid paralllel of varying lengths. It is composed wholly of synthetic staple fibres of non-cellulosic origin (Polyester). These tufts have entangled knots and a few of them have dirt and foreign bodies adhering on in traces. 26. Synthetic waste To find out the % age of Synthic waste The sample is in the form of grey coloured fibrous mass. It is composed of artificial staple fibres of cellulosic origin (Viscose) and synthetic staple fibres of non-cellulosic origin (Polyester). The percentage composition being Sample T.M. 12/88 Polyester fibres : 41.5% Viscose fibres : 58.5% 27. 100% non-cellulosic synthetic waste To find out the % age of noncellulosic synthetic waste The sample is in the form of white assembled mass composed of small, thin and thick tufts of white staple fibres with cut ends, laid parallel, of varying lengths. It is composed wholly of synthetic staple fibr....
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.... waste and Viscose waste The sample is in the form of brown tinted of fibrous mass. It is composed of artificial staple fibres of cellulosic origin (Viscose) and synthetic staple fibres of non-cellulosic origin (Polyester). Percentage polyester : 45.0 : 55.0 Percentage Viscose 11. In Annexure B we find that there is a note in 3 out of 7 samples (Nos. 1, 4 & 5) stating that it is not possible by test to find out whether waste fibres have been used in blended yarn. Sample No. l is a double ply spun yarn composed of artificial fibres & synthetic fibres (not synthetic staple fibre), sample No. 3 consists mainly of synthetic fibres of non-cellulosic origin (not synthetic staple fibre) & artificial staple fibre while in sample No. 5, the words 'Synthetic staple fibres' have been used. 12. In Annexure A, Samples 1,2,3,4,7,8 are found to have the characteristics of waste and as against samples No. 3 & 8 the finding is that the characteristics of waste is with respect to length of fibre, which itself indicates that the length of fibre is relevant for determination whether it is staple or waste. In these cases the purpose was to determine the pe....
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....ading 55.05. 14. The note on waste in the H.S.N. is with reference to length of the fibre and length of the fibre is nowhere mentioned in the test reports of samples not containing either the characteristic of waste or containing varying lengths. The lack of homogenity indicates that the fibres are waste. At this juncture it would be pertinent to note that there is no allegation that waste has not been used in the blended yarn and in fact the show cause notice itself mentions that the goods in question contained imported and generated synthetic waste. 15. As per the definition of "staple fibre "as quoted in paragraph-13, a staple fibre is a fibre of uniform length and denier. Test reports of the samples mentioned at Srl. No. 6,10,11,13,17,18,19,21,24,25,27,30,31 and 32 of Annexure 'A' enclosed to the Collector's authorisation clearly state that the fibres in the samples were of varying lengths. Paragraph 2 (9) of the Order No. 9/89 (HQ ROA No. 217/89) dated 24-7-1989 passed by the Collector of Central Excise, Hyderabad under Section 35B (2) of the Central Excises & Salt Act says that: "On physical examination of the samples of synthetic waste, it is seen that it is a mixtu....