TaxTMI 
TaxTMI 
2018 (11) TMI 1102
X X X X Extracts X X X X
X X X X Extracts X X X X
....63039200 and 59039090, based on the composition of imported fabric and their end use. It was observed that the 'roller blind fabrics' were being imported in roll form and there was no marking on the fabrics so imported in the different sizes, as per the requirement of window blinds/roller for curtain blinds. It was alleged that the importer has resorted to mis-classification of the goods imported in order to pay the Customs duty on advalorum basis instead of specific rate of duty. The said roller blinds fabrics were coated or uncoated and made of polyester and without processing i.e. cutting, stitching and assembled with other accessories, hence the roller blinds fabrics appear to be classifiable under different "Customs Tariff Heading", based on the composition of the fabrics which would attract the specific rate of duty, as per the Show Cause Notice, it was proposed to classify these imported goods under CTH 54077200 and 63039200. After following the due process of law, it was held by the adjudicating authority that the appellant has correctly classified their imported goods under Tariff Heading No. 63039200 and accordingly, discharged the Show Cause Notices to the various appell....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that sub-chapter 1 (which covers Tariff Heading 6303) applies only to made up articles, of any textile fabric. Thus, the classification of imported item (not being made up article) under Tariff Heading 6303 is excluded by Rule 1 of the said Rules under Chapter Note 1 of Chapter 63. Invocation of Rule 2(a) to classify the said item under Chapter 63 does not appear proper. (iv) Merely end use of the imported item as curtain blind cannot be the basis of classification of imported goods as has been held in catena of judgements included those of the Apex Court. 4. The ld. DR states that in view of above mentioned grounds, the adjudicating authority has erred in dropping the demand as raised by the Show Cause Notice dated 22.5.2007 and Corrigendum dated 26.9.2017. 5. On the other hand, ld. Advocate, on behalf of the respondents submitted that the appellant is engaged in the import of aforestated components of roller blinds and PVC coated roller blind fabric in the running length in the form of rolls and being used in the manufacturing of curtains or wall hangings. The structure of imported good is still blind and the simple cutting does not alter the same. It does not have any fall. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fabric does not have any application other than the roller blind. The ld. Advocate also relied upon the case of CCE Vs. Tarpaulin International - 2010 (256) ELT 481 (SC), wherein it is held that no new product emerges by cutting to size the imported subject goods. 8. It was also submitted that Indian Customs Tariff is aligned with HSN and rulings of the WCO, which serves guidelines to decide the classification, which has been upheld by the Hon'ble Tribunal in a number of cases. It was submitted that the European Commission, Dte. General Taxation and Customs Union dealing with classification of an article consisting of shiny woven transparent fabric (100% polyester) and classified the same under 63039290 for the reason that the classification is determined by General Rule 1, 2(a) and 6 for the interpretation of the combined nomenclature by note 7 (d) Section XI and by the wording of CN codes 6303, 6303 92 and 6303 92 90. 9. The ld. Advocate also submitted that onus to prove the change in the classification is upon to Revenue which has not been discharged in the present case. The department has not produced any evidence to change the classification of the product as declared by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the godwons of the party (Annexures 'A' and 'C' of the panchnama dated 4.6.2016) and past imports made in 2014 (through Nhava Sheva and ICD, TKD), 2015 & 2016 (through ICD TKD). By changing the classification in this manner, the goods are alleged to be liable to specific rate of duty. Differential duty of Rs. 85,71,869/- has accordingly been demanded in this manner for such imports, under the provisions of Section 28 of the Customs Act, along with interest under Section 28AA. Bank Guarantee of Rs. 6,55,510/- (submitted by the party for provisional release of seized goods imported vide B/e No. 5348520 dated 23.5.16), Rs. 7,15,887/- submitted for provisional release of seized goods imported vide B/e No. 5802810 dated 29.9.16) and Rs. 11,92,432/- (submitted for release of goods seized in the party's godown vide panchnama dated 4.6.16) are also proposed to be encashed and appropriated towards Customs duty. Both the party and their Customs brokers, and their respective Directors are proposed to be penalised under Section 112 of the Act. 34.2 Since the issue is the appropriate classification of certain goods, it is first of all important to establish the nature and description of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sets; worn clothing and worn textile articles; rags" and as per chapter note 1 to this chapter, sub-chapter 1 applies only to made up articles of any textile fabrics. What precisely is "made up" does not appear to have been defined in the Tariff, but the DRI has relied on Section Note of Unit-II of "Customs Classification of Textiles & Textile Articles under HSN", a private publication, to claim that the items imported by M/s Vyoma Decor Pvt. Ltd. do not justify/fulfil the definition of 'Made ups'. As per the Section Note of Unit-II of this publication, it has been said that the expression 'Made up' means, (a) Cut otherwise than into squares or rectangles; (b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example certain dusters, towels, table cloths, scarf squares, blanker); (c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means; (d) Cut to size and having under gone a process of drawn thread work; (e) Assembled by sewing, gumming or ot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that it cannot be sued as fabric for apparel or any other use, * The structure of fabrics is stiff enough so that on plain cutting the salvage will not come out. It has no fall, nor can it be folded. In the market, it is not sold as fabric but only as roller blind fabric. * Hemming in form of applying stapled plastic tape at ends for smooth sliding into the rollers is also done. * Almost all accessories required to make roller blind have been imported under the live bill of entry. * After import, the process involves mere assembly. The fabric is first cut as per size of window, the hard plastic tapes are stapled on top and bottom, and then those hemmed edges are inserted in aluminium section to provide support to the fabric for handing straight. Readymade tiller with ball chains is placed on one side of the top aluminium channel so that the blind fabric can be rolled up and down. As such, there is no change in the basic structure or composition of the imported goods. 34.8 Further support to the above, is available in the form of HSN Explanatory notes to the heading 63.03, it has been stated therein that: "This heading includes: (1) Curtains (including draps).................