TaxTMI 
TaxTMI 
2019 (5) TMI 223
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....d by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 8608/2016 are narrated hereunder. 02. The petitioner before this Court, a Company registered under the Companies Act, 1956, has filed this present writ petition challenging the order dated 26/12/2015 passed by the Dy. Commissioner, Commercial Tax, Indore Division III, Indore, imposing tax on Warp Knit Fabrics @ 5% (Value added tax). The contention of the petitioner is that the petitioner is engaged in the business of manufacture of Warp Knit Fabrics which fall under Heading No. 60059000 of the Central Excise Tariff. The said product is listed in the Goods of Special Importance under the additional duty of excise (Goods of Special Importance) Act, 1957. The petitioner has further stated that the Excise Duty payable on Warp Knit Fabrics is leviable @ 12%, however, on account of a Notification dated 9/7/2004 it is exempted from payment of Excise Duty. The petitioner has further stated that a dispute arose in respect of classification of the product and a company registered under the Companies Act - M/s. Neo Corp International Ltd., went in appeal before the Excise Commissioner and the Excise C....
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.... appeal before the Additional Commissioner. The respondents in the return have categorically stated that the Commissioner, Commercial Tax has decided the issue of classification in exercise of powers conferred u/S. 70 of the MP VAT Act, 2002 in the case of M/s. SR Polyimpex and in the case of M/s. Neo Corp International. It has been held that Warp Knit Fabrics cannot be treated under Schedule I, Entry 48 (tax free goods) and it has to be treated under Entry 34 of Schedule II (duty @ 5%) hence, once the Commissioner has classified the goods to fall under Entry 34 of Schedule II of the MP VAT Act, 2002, an appeal before an authority subordinate to the Commissioner is going to be a futile exercise. 06. The sole question before this Court is whether the Warp Knit Fabrics is included under Schedule I, Entry 48 or Schedule II Part 2 Entry 34 of the MP VAT Act, 2002. The relevant statutory provisions relating to the entries in question reads as under : 48. Fabrics specified in the First Schedule to the additional Duties of Excise (Goods of Special Importance) Act, 1957 (No. 58 of 1957) as it stood prior to the date on which the Finance Act, 2011 (No. 8 of 2011) came into force....
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.... - Sun cured country (natu) tobacco Kg. 10.00% 2401 10 30 - Sun cured virginia tobacco Kg. 10.00% 2401 10 40 - Burley tobacco Kg. 10.00% 2401 10 50 - Tobacco for manufacture of biris, not stemmed Kg. 10.00% 2401 10 60 - Tobacco for manufacture of chewing tobacco Kg. 10.00% 2401 10 70 - Tobacco for manufacture of cigar and cheroot Kg. 10.00% 2401 10 80 - Tobacco for manufacture of bookah tobacco Kg. 10.00% 2401 10 90 - Other Kg. 10.00% 2401 20 - Tobacco, partly or wholly stemmed or stripped : 2401 20 10 - Flue cured virginia tobacco Kg. 10.00% 2401 20 20 - Sun cured country (natu) tobacco Kg. 10.00% 2401 20 30 - Sun cured virginia tobacco Kg. 10.00% 2401 20 40 - Burley tobacco Kg. 10.00% 2401 20 50 - Tobacco for manufacture of biris Kg. 10.00% 2401 20 60 - Tobacco for manufacture of chewing tobacco Kg. 10.00% 2401 20 70 - Tobacco for manufacture of cigar and cheroot Kg. 10.00% 2401 20 80 - Tobacco for manufacture of hookas toba....
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.... Other Kg. 8.00% 6003 KNITTED OR CROCHETED FABRICS OF A WIDTH NOT EXCEEDING 30 CM, OTHER THAN THOSE OF HEADING 6001 OR 6002 6003 10 00 - Of wool or fine animal hair Kg. 8.00% 6003 20 00 - Of cotton Kg. 8.00% 6003 30 00 - Of synthetic fibres Kg. 8.00% 6003 40 00 - Of artificial fibres Kg. 8.00% 6003 90 00 - Other Kg. 8.00% 6004 KNIMED OR CROCDHETED FABRICS OF A WIDTH EXCEEDING 30 CM, CONTAINING BY WEIGHT 5% OR MORE OF ELASTOMERIC YARN OR RUBBER THREAD, OTHER THAN THOSE OF HEADING 6001 6004 10 00 - Containing by weight 5% or more of Kg. 8.00% elastomeric yarn but not containing rubber thread 6004 90 00 - Other Kg. 8.00% 6005 - WARP KNIT FABRICS (INCLUDING THOSE MADE ON GALLOON KNITTING MACHINES), OTHER THAN THOSE OF HEADINGS 6001 TO 6004 - Of cotton: 6005 21 00 - Unbleached or bleached Kg. 8.00% 6005 22 00 - Dyed Kg. 8.00% 6005 23 00 - Of yarns of different....
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.... has again held that Warp Knit Fabrics falls under heading 6005300 and thus falls in the list of Additional Duties of Excise (Goods of Special Importance Act, 1957) hence the rate of duty is 12%. 09. Thus, this Court is of the considered opinion that respondent No.3 has failed to consider that the Warp Knit Fabrics fall under Heading 60059000 of the Central Excise Tariff Act, as held by the Commissioner Appeals, Central Excise, Indore. By passing the impugned order, respondent No.1 has brushed aside the vital fact that the product in question is included in the list of I Schedule of the goods of Special Importance under the Additional Duty of Excise (Goods of Special Importance Act) 1957 and, therefore, again the impugned order deserves to be quashed. 10. In the present case, there is no dispute that Schedule I, Entry 48 refers to a classification provided under the I Schedule to the Additional Duties of Excise (Goods of Special Importance Act) 1957 and, therefore, the classification done under the Central Excise Tariff has to be accepted especially when MP VAT Act, 2002 Schedule refers to the Tariff Heading / classification under the Central Excise Act. The findings arrived ....