TaxTMI 
TaxTMI 
2018 (2) TMI 1439
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....rief facts are that the respondents classified their final product namely textile fabric combined with PU foam as textile fabric laminated with polyurethane foam under Chapter 5903 2090 and availed benefit of Notification No. 29/2004-CE dated 9.7.2004 as amended by Notification No. 10/2005-CE dated 1.3.2005 paying duty @ 8% Adv. Note 1(h) to Section XI excludes woven, knitted or crocheted fabrics or non-woven, impregnated, coated, covered or laminated with plastics or articles thereof Chapter 39. Further, Note 2(a)(5) of Chapter 59 excludes plates, sheets or strip of cellular plastics, combined with textile fabric where the textile fabric is present merely for reinforcing purposes to Chapter 39. Thus, it appeared to the department that the ....
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....at the Commissioner (Appeals) in the impugned order has entirely relied upon the decision of the Tribunal in the case of Triton Synthetics Fibres (P) Ltd. Vs. Commissioner of Central Excise, Bangalore 1999 (106) ELT 557 (Tri. Chennai). That the product in question in that case was manmade fabric and cotton fabric coated with PU foam used as fabric in the manufacture of shoe uppers. The goods in question in the instant case is PU foam sheets laminated with textile fabric knitted out of polyester granules used in the manufacture of car seats. The Tribunal in the said case held that the functional character of the article was that of textiles and not of plastics as the goods in question were used for shoe uppers and therefore classified under ....
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....21 categorically states that this heading covers only cellular products or those which have been reinforced, laminated, supported or similarly combined with other materials . In view of the clear cut Explanatory Notes, Section Note and Chapter Note, the product would fall only under Chapter 39. 3.4 The original authority has relied upon the Apex Court judgment in the case of Atul Glass Industries Ltd. Vs. Collector of Central Excise 1986 (25) ELT 473 (SC). However, the Commissioner (Appeals) has dismissed these discussions as not applicable. In the said case, the Hon'ble Apex Court held that when statute does not contain definition, the primary function test has to be applied. In the instant case, the functional character of the article ....
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....percentage of foam. Thus, the predominant content is fabric and not plastic. The earlier chemical test report as well as report of SITRA was in favour of the respondents. The original authority had ignored these test reports. The Commissioner (Appeals) has rightly relied upon the test reports as well as the decision of the Tribunal in the case of Triton Synthetic Fibres (P) Ltd. (supra) on identical set of facts. Further, the Board Circular dated 13.12.1995 was also relied which categorically stated that the correct classification of PVC leather cloth which is also known as rexine will fall under 5903 since the textile fabrics in such fabric does not act as a reinforcing material. The Circular issued by the Board is binding on the departmen....
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....t of PU foam. 9. The Board vide its Circular dated 13.12.1995 has clarified that PVC leather cloth or rexine is classifiable under 5903. The doubt with regard to classification was whether this would fall under Chapter 39 and Chapter 59 which is identical to the issue at hand. It is stated in the circular that the process of manufacturing PVC leather cloth involves coating of a paste of plastic material (PVC) on one side of the base fabric. In this case, the plastic is not combined with the textile but is coated on textile fabric to form final product. Textile fabrics does not act as reinforcing material. Such fabrics are used for upholstery and can take sharp bends without cracking. After analyzing the applicability of Chapter Note 2(a)....
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....n Synthetic Fibre (P) Ltd. (supra), we hold that the goods are classifiable under 5903. 12. In addition, the ld. consultant appearing for the respondent has produced before us an affidavit of the respondent stating that there is an error in the narration of facts in the show cause notice. The show cause notice alleges that the respondent clears PU foam sheets and polyester granules (for laminating the PU foam) to their job workers who convert the granules into yarn and knit the yarn into fabrics and use it to laminate the PU form sheets. In fact, the respondent clears PU foam to their job workers who cut the same into the required size and laminate the PU foam on textile fabric. The respondent does not send any polyester granules to the ....