TaxTMI 
TaxTMI 
2018 (11) TMI 1274
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....st Schedule to the Central Excise Tariff Act, 1985 and availed exemption from payment of Central Excise Duty claiming as 'Textile & Textile Articles' under Notification No. 30/2004-CE dated 09.07.2004. Accordingly, a show cause notice demanding duty, penalty and interest was issued, which culminated into passing of the impugned order. Being aggrieved, the assessee-Appellants filed the present appeal. 3. With this background, we have heard Sh. Bipin Garg, learned Advocate for the assessee-Appellants and R.K. Mishra, learned DR for the Department. 4. After hearing both sides and on perusal of the material available on record, it appears that an identical issue has come up for consideration before the Tribunal in the case of M/s Shanti Surgical Pvt. Ltd. & Ors. vs CCE, Kanpur & Anr., 2017-TIOL-2153-CESTAT-ALL, wherein it was held that: "10. Having considered the rival contentions and on perusal of the facts on record, we find that the main issue in the present 6 appeals is the classification of the products mainly Absorbent Cotton Wool, Carded Cotton/Non-Absorbent Cotton, Handloom Gauze, Handloom Bandages & Bandages, etc. Revenue has claimed the classification of the said items und....
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....hapter note, the explanations of HSN and the case law of various judicial forum. On the contrary, the appellants have pleaded that the goods in question were rightly classifiable under their respective sub-headings as claimed by them, on the basis of nomenclature. The basic submission of the appellants was that the specific entry cannot be overridden by the residuary entry. In support of their contention they have relled upon various judicial pronouncements of Hon'ble Apex Court and Hon'ble Tribunal, wherein it has been settled that the specific entry will prevail over the general. The next submission of the appellant was that their sales were not the 'retail sales' as the goods were not sold for retail consumption to ultimate consumers; rather their buyers were the industrial and institutional buyers. They have also submitted that their packages were not the 'retail packages'. The appellants in their defence have relied upon the definition of terms 'retail sale' and 'retail package' as defined in "The Standards of Weight and Measures (Packaged Commodities) Rules, 1977 (SWMPCR in short) issued under the Standards of Weight & Measures Act, 1....
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....made to search a specific entry where the goods can be classified as per the nomenclature and the constituent material. In case no specific entry is available the next attempt should be to find the nearest entry where the goods can be classified. In case both the attempts turn to be futile then the attempt should be made to consider the end uses, the inclusion and exclusion clauses provided in the section notes, the chapter notes and the explanatory notes given the HSN. While doing so the interpretation of the said Note will depend upon the context in which the entries have been worded. If an entry is clearly worded and is broad in character, the same would lead to the conclusion. An entry is to be given its ordinary meaning. If any goods fit in within one entry, the same for any purpose would not be held to be included in the other and in particular the residuary. Now coming to the issue, I observe that the goods "Absorbent Cotton Wool" and "Cotton Carded" specifically find place in the Chapter Sub-heading 56012110 & 52030000 respectively. Nothing regarding its uses, its packing, its end use or its being of 'IP' grade has been specified therein so as to exclude it from cla....
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....Felt, whether or not impregnated, coated, covered or laminated. It is well settled what is not excluded would be held to be included. In this regard, I would like to quote the provisions of Rule 1 of the Rules for the Interpretation which clearly provides that "1. The titles of Sections and chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the provisions hereinafter contained." In the aforesaid rule there is no ambiguity and it has clearly been held that the classification has to be determined according to the terms of headings and in case of any ambiguity the Rule 2, 3 or 4 as the case may be, shall be applied. Furthermore, the Rule 5 of aforesaid Rules again clarifies the position. For the sake convenience the provisions of said rules are reproduced as follows : - "5. For legal purposes, the classification of goods in the Sub-headings of a heading shall be determined according to the terms of those Sub-headings and any related Sub-heading notes and mutati....
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....hile comparing various Chapter Headings has further noticed that "Flow meters are specifically covered in Tariff Heading 90.24. Specific excludes general, is the well-known principle. Heading 90.29 permits levy on parts or accessories which are used solely in the manufacture of one or more of the articles falling within Heading 90.24. The Assistant Collector held that the accessories imported by the appellant were used solely for the meter manufactured by the appellant. Therefore, if the meter manufactured by the appellant can be said to satisfy the description of Tariff Heading 90.24, then by virtue of Tariff Heading 90.29 the rate of duty on the components imported by the appellant could be levied as in Tariff Heading 90.24. On the finding recorded by the Assistant Collector the end-product manufactured by the appellant being specifically provided for by 90.24, the accessory imported by the appellant which was solely used for manufacture of it was liable to be classified on the same rate as the item in which it was used, namely, flow meter." The findings above clearly lay that the specific will prevail over the general. I notice that the Adjudicating Authority has referred the sa....