TaxTMI 
TaxTMI 
2018 (9) TMI 1713
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.... to avail the benefit of Notification No.4/2006 (Entry No.78). They also sought to classify their final product under Central Excise Tariff Heading (CETH) 3907.60 of the Central Excise Tariff Act, 1985 (CETA). Department however, took the view that said exemption notification would not be available to them and that these items should be correctly classifiable as waste of plastics / PET flakes under CETH 39159042. Proceedings were initiated by way of issue of show cause notice dt. 24.03.2010. In adjudication, the original authority vide an order dt. 14.06.2010 held that Parings of PET bottles / PET flakes cleared by the assessee have been rightly classified under CETH 39159042 of the CETA. In appeal, the Commissioner (Appeals) vide the....
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....and hence benefit of Notification No.4/2006-CE for items at Entry No.78 should very well be available to the final products. 3.2 Ld. Consultant relies upon the following case laws : (a) CCE Bombay Vs Bright Bros. Ltd. - 1996 (84) ELT 83 (Tribunal) (b) CC New Delhi Vs Bhartiya Plastic Udyog - 1999 (107) ELT 161 (Tribunal) (c) Ideal Sheet Metal Stampings & Pressings Pvt. Ltd. Vs CC Ahmedabad - 2001 (133) ELT 807 (Tri.-Mumbai) (d) CC Ahmedabad Vs Surya Exim Ltd. 2015 (323) ELT 585 (Tri.-Ahmd.) 3.3 Ld. Consultant also submits that even in case the final goods have to be considered as falling within CETH 39.15, it has to be held that no manufacture is involved in conversion of PET Bottles into Flakes. Fo....
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.... facts on record, it emerges that appellant in their reply dt.23.4.2010 to the SCN have informed that waste PET bottles are crushed and washed using mechanical force and converted into, flakes' which are then cleared to other manufacturers, who convert it to powder and cleared to manufacturer of PET bottles; that the buyer of the product who converts the, flakes" to powder form is not paying Central Excise duty; that the product waste PET bottle flakes and waste PET bottles in powder form are the two stages of conversion of used and waste PET bottles into a new PET bottle for fresh usage; that since flakes are converted into PET bottles, they are inputs for such manufacturers and are classifiable under CETH 3907.60 only. 5.3 The appellan....
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....pter Note 6, which reads as under : "6. In headings 3901 to 3914, the expression "primary forms" applies only to the following forms: (a) Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; (b) Blocks of irregular shape, lumps, powders (including moulding powders), granules, flakes and similar bulk forms." 5.6 It is thus evident that primary forms for the purpose of Chapter 39 are constituent goods which are, primary" in form and meant to be converted by further polymerisation or chemical synthesis into other materials of Headings 3901 to 3914. This interpretation is reinforced by Chapter Note 3 which clarifies as under: "3. Headings 3901 to 3911 apply only to goods of ....
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....their products only convert them into primary form namely, powder form and hence not paying Central Excise duty. 5.9 Secondly, while Chapter Note 7 does clarify that Heading 3915 does not apply to inter alia, parings" of a single thermoplastic material, that is only applicable for such material which has been transformed into primary form (Heading 3901 to 3914). This being so, only when the, parings" manufactured by the respondents are converted into, primary forms" such goods will then go out of CETH 3915. 5.10 Further, respondent has all along not only been importing the, PET Bottle Waste" under classification 39159042, but also exporting the 'PET Flakes Clear, washed' under the same classification 39159042. 5.11 In view of the d....
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....everal mechanical processes, the same cannot be equated with PET in primary form. As per Chapter Notes No.3 to Chapter 39 under Section VII of Central Excise Tariff clearly stated that - Headings 39.01 to 39.11, apply only to goods of a kind produced by chemical synthesis. As per point No.1 of the General Rules for the interpretation of the schedule "for legal purposes, classification shall be determined according to the terms of the Headings and any relative Section or Chapter notes." The Tariff heading 3915 applies to Waste, parings and scrap of plastics; The sub headings 3915 90 42 applies to Waste, parings and scrap of pet bottles; The word 'of' in sub Heading has to be given its due importance. The cleaned an....