TaxTMI 
TaxTMI 
2021 (10) TMI 149
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....g agent, caustic flex, caustic lye liquid soap, hydrogen peroxide) with acetic acid with the help of Jigger Machine. Thereafter it is subjected to drying range machine for drying. Subsequent to this dried fabric is by adding starch PVA and binder by padding process on Stenter Machine. After completion of this process this fabric is passed through calendar and zero machine. Thereafter this fabric is partially coated by Polyethylene powder having 25 to 45 grams per sq.meters with the help of engraved dotted cylinder. Thus Final Fabrics produced is having partial and porous coating with Polyethylene powder. The fabric so emerged is known as Fusible Interlining fabrics of cotton. Thus from the manufacturing process it is revealed that coating is not carried out with Films.' 3. The appellant has submitted that air and water can easily pass through this fabric and this fabric is easily tearable and washable by hand; that in common parlance the fabric so manufactured is known as Fusible Cotton interlining fabrics and it is supplied to wholesaler, wholesaler to retailer and retailer to tailor for it is used in the collars and cuff of shirt for garments and it's price is below Rs. 100 pe....
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....pter Note for Heading 5903 of First Schedule to the Central Excise Tariff Act, 1985. Chapter Note for Heading 5903 of the First Schedule to the Customs Tariff Act, 1975 Heading 5903 applies to: (a) textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre and whatever the nature of the plastic material (compact or cellular), other than: (1) fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; (2) products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15oC and 30oC (usually Chapter 39); (3) products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39); (4) fabrics partially coated or partially covered with plastics and bearing....
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....f Central Excise, Tirunvelveli reported as 2019 (365) ELT 345 (Tri-Chennai.) They had therefore, raised the following question seeking Advance Ruling on the same: 'Whether the product Fusible Interlining Fabrics of Cotton is correctly classifiable under Chapter 52 or 59?' 7. The appellant has stated that the had approached the Gujarat Authority for Advance Ruling along with the test results of their products which they had obtained from ATIRA, recognized by the Government of India. The Gujarat Authority for Advance Ruling ruled that their product 'Fusible Interlining Fabrics of Cotton' was classifiable under Heading 5903 of the First Schedule to the Customs Tariff Act, 1975(51 of 1975) on the following grounds: (i) On comparing the test results of the sample product/fabric 'fusible interlining fabric of cotton' of the applicant obtained from ATIRA, with the 3 conditions of the explanatory notes to HSN in respect of Heading 5903, all the 3 conditions for classification under Heading 5903 were found to have been fulfilled. (ii) The fabric fusible interlining fabric of cotton' of the applicant was found to be not classifiable under Heading 5208 to 5212 of....
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....oC (usually Chapter 39); (3) products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39); (4) fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55, 58 or 60); (5) plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 39); or (6) textile products of heading 5811; (iii) As per the above chapter note, it excludes fabrics having characteristics from Sr.No.1 to 5 above; that it is mentioned the said chapter note as to where the fabrics having characteristics of (1) to (5) will be classified, if not classified under Heading 5903 and that by referring to Explanatory notes to HSN, the GAAR has negated the content of Chapter note 2(a) which is not correct and legal. (iv) The test result obtained by appellant from ATIRA is admitted b....
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....ular), other than: (1) fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; (2) products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15oC and 30oC (usually Chapter 39); (3) products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39); (4) fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55, 58 or 60); (5) plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 39); or (6) textile products of heading 5811; This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g.,....
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.... (vi) While examining the test results of the sample, GAAR compared the Explanatory Notes of HSN with samples and not with the chapter Note 2(a) of Chapter 59 provided for Heading 5903 which is erroneous. Assuming without admitting, they contend that the analysis of conditions no.1 to 3 and conclusion based on the said analysis, GAAR have wrongly classified their product under Chapter 59. The conditions analyzed by GAAR and contention of the appellant are as under: Sr.No. Conditions to be fulfilled as per explanatory notes to HSN Corresponding test results as per ATIRA's test report 01. In the case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour. The product is polymer coated on one side. Coating cannot be seen with the naked eye. Coating is non-continuous. This coating is different than film coating. Film coating is visible with naked eye. 02. The products are not rigid, i.e. they can, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 degrees centigrade and 30 degrees centigrade. The produ....
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....een with the naked eye or can be seen only by reason of a resulting change in colour usually fall in Chapters 50 to 55, 58 or 60 which is also excluded at Sr.No.1 of Chapter Note 2(a); that the coating referred in this exclusion is plastic, but the GAAR have not read the explanatory note in totality. Therefore, the finding of GAAR that 'We find that film coating also involves coating with natural or synthetic polymeric substance (plastic). Even otherwise, the condition only stipulates that coating must be visible with the naked eye but does not mention polymer coating or film coating, hence this condition is fulfilled' is totally erroneous and reading of the explanatory note is out of context. Condition 2: It is mentioned here that 'is fulfilled as the product can be bent without fracturing around a cylinder of a diameter 7m or more at temperature between 15 degrees C to 30 degrees C.' The appellant has stated that GAAR have ignored that the product having these characteristics is excluded at Sr.No.2 of Chapter 2(a). Condition 3: It is mentioned here that 'is fulfilled as the fabric is not completely embedded in plastic but is covered with plastic polymer on one s....
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....a) clearly states that fabric confirming to 1 to 3 are not classifiable under Heading No.5903 notwithstanding anything contained in the explanatory note. (viii) The appellant has invited reference to CBEC's Circular No.254/88/96-CX dated 18.10.1996 wherein at para 5, it is clearly stated and clarified rightly as well that Chapter Note will prevail over HSN explanatory note. The appellant's view gets support in the case of CCE & Cus, Aurangabad vs.Ratan Tarpaulin Water Proof Indus reported as 2000(126) ELT.782(Tribunal). They have reproduced the full text of the Circular referred above as under: Circular No. 254/88/96-CX dated 18/10/96 [From F.No. 59/3/93-CX.1] Government of India Ministry of Finance Department of Revenue, New Delhi Subject: Classification of Tarpaulin/ Processed waterproofing canvas cloth- Clarification regarding. I am directed to draw your attention to Board's Circular No. 6/91 dated 11.4.91 wherein it was clarified that wax coated canvas cloth would merit classification under heading 59.06 of the Central Excise Tariff if there is formation of visible layer on the surface of the fabric and not merely a change of colour or some r....
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....se of doubt, the samples can be got tested by Dy. Chief Chemist. All pending show cause notice(s) may please be finalized early on these lines. (ix) The appellant has submitted that their samples of fabrics confirms to the characteristics mentioned at 1 to 3 of Chapter note 2(a), which excludes the classification of the subject goods under 5903 as such their product will be classifiable under Chapter 50 to 55 as mentioned in the chapter note No.2(a) itself. As they have used cotton fabric which contains 100% of cotton, their product will be classified in Chapter 52 of the First Schedule to the Customs Tariff Act, 1975. (x) Based on the explanatory note of HSN for Chapter 52 and ignoring the Chapter Note 2(a) of Chapter 59, the GAAR has drawn conclusion in para 24.3, 24.4 and 24.5 that the subject fabrics is not classifiable under Chapter 52 but under Chapter Heading 5903 which is not correct; that as discussed in above para, the Chapter note prevails over the Explanatory notes to HSN, accordingly, the decision of GAAR is in contradiction to what is clarified in para 5 by CBEC in the above referred Circular No. 254/88/96-CX dated 18.10.1996; that not only is it als....
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....oodswear Fashion Pvt. Ltd. [2019 (23) GSTL.154 (AAR-GST] not taken into account the relevant circulars of CBE &C relating to classification of fusible interlining cloth and hence cannot be said to reflect the true legal position on this issue. (xiii) The appellant has stated that the aforesaid decisions are based on CBEC's Circular No. 433/66/98-CX-6, dated 27.11.1998 which was struck down by the High Court of Madras in the case of Madura Coats pvt. ltd. vs. CBEC, New Delhi and relying on the said decision of the Madras High Court, the Hon'ble Tribunal in the case of Madura Coats pvt.ltd. vs. Commissioner of Central Excise, Tirunelveli reported at 2019 (365) ELT 345 (Tri-Chennai) has held that: Cloth-Fusible interlining cloth, Classification of-Note2(c) in Chapter 59 of Central Excise Tariff itself no longer in existence and requirements laid down in Chapter Note 2(a) to Heading 5903 ibid read with CBE & C Circulars not satisfied-Impugned goods not to be classified under Heading 59.03 ibid-Impugned order cannot sustain and liable to be set aside. Thus the appellant have relied upon the above decision which is clearly distinguishable from the decisions rel....
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....c 'fusible interlining fabrics of cotton'. GAAR vide Advance Ruling No. GUJ/GAAR/R/86/2020 dated 17.09.2020 ruled that the said fabric is classifiable under Heading '5903' of the Customs Tariff Act, 1975(51 of 1975). The appellant has challenged the aforementioned order of the Advance Ruling authority. Therefore, the issue involved in this case is the proper classification of the product/fabric 'fusible interlining fabrics of cotton'. 11. The appellant in their submission have contended that: (i) GAAR have not considered the general rules of interpretation of the First Schedule to the Customs Tariff Act, 1975, section and chapter notes and general explanatory notes of the First Schedule; that Rule 1 of the General rules for the interpretation for classification of goods in the schedule provides that 'The titles of sections, chapters and sub-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. (ii) GAAR has classified their product 'Fusible Interlining Fabrics of Cotton' under Chapter heading No.5903 by mis-reading the Chapter Not....
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....atory Notes of the First Schedule shall, so far as may be, apply to the interpretation of this notification. 11.2 We also find that the GAAR has neither misread the Chapter Note 2(a) nor negated the content of Chapter Note 2(a) by referring to explanatory notes to HSN in respect of Heading 5903, because the criteria/conditions mentioned in the explanatory notes to HSN (in respect of Heading 5903) are not in any way different to the corresponding criteria/conditions mentioned in Note 2(a) but are in fact, similar to the conditions mentioned in Chapter Note 2(a) of Chapter 59. The only difference here is that the criteria mentioned in Chapter Note 2(a) [column(1) below] helps to identify those fabrics that are excluded from Heading 5903 whereas the criteria mentioned in the explanatory notes to the HSN [marked in bold letters in column(2) below] lays down the conditions which helps in classifying the product under Heading 5903. A comparative chart of the same, which is given below, will help clarify the issue: Chapter Note 2(a) for Heading No.5903 in First Schedule of the Customs Tariff Act, 1975 Explanatory note of Heading No.5903 from HSN for guidance. (1) (2) Hea....
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.... be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 degrees centigrade and 30 degrees centigrade. (3) That the textile fabric is not completely embedded in, nor coated or covered on both sides with, plastics. Products not meeting the requirements of subparagraph (2) or (3) above usually fall in Chapter 39. However, textile fabric coated or covered on both sides with plastics where the coating or covering cannot be seen with the naked eye, or can be seen only by reason of a resulting change in colour, usually falls in Chapter 50 to 55, 58 or 60. Except in the case of textile products of heading 58.11, textile fabrics combined with plates, sheets or strip of cellular plastics, where the textile fabric is present merely for reinforcing purposes, are also classified in Chapter 39 (see General Explanatory Note to Chapter 39, part entitled "Plastics and textile combinations", penultimate paragraph). The laminated fabrics of this heading should not be confused with fabrics which are simply assembled in layers by means of a plastic adhesive. These fabrics, which have no plastics showing in cross-section, generally fall in Chapter 50 to 55. In many o....
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.... Chapter Note 2(a) of Chapter 59 reads as under: Heading 5903 applies to: (a) textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre and whatever the nature of the plastic material (compact or cellular), other than: (1) fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; (2) products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15oC and 30oC (usually Chapter 39); (3) products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39); (4) fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55, 58 or 60); (5) plates, sheets o....
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....Fabrics that are excluded from Heading 5903 as per criteria (1) to (6) of Chapter Note 2(a) of Chapter 59 of the Customs Tariff Act, 1975 (51 of 1975) Corresponding test results as per ATIRA's test report. Whether condition for being classified under Heading 5903 is fulfilled: (1) (2) (3) (4) 1. fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; The product is polymer coated on one side. Coating cannot be seen with the naked eye. Coating is non-continuous. This coating is different than film coating. Film coating is visible with naked eye. Yes 2. products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15oC and 30oC (usually Chapter 39); The product can be bent without fracturing around a cylinder of a diameter 7m or more at temperature between 15C to 30C. Yes 3. products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such ma....
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....g can be seen with the naked eye with no account being taken of any resulting change of colour would fall under Chapter 39. As per the test result, the fabric is not completely embedded in plastic but is covered with plastic polymer on one side, hence the product/fabric fulfills this criteria/condition also for being classified under Heading 5903. Criteria 4: As per this criteria, fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are covered under Chapter 50 to 55, 58 or 60. In other words, fabrics which are not partially coated or not partially covered with plastics and bearing designs resulting from these treatments are not covered under Chapter 50 to 55, 58 or 60, but under heading 5903. As per the corresponding test result of ATIRA, the fabric of the appellant is covered with plastic polymer on one side and bears a design like a dot matrix design resulting from coating process i.e. it does not mention that the fabric is partially coated or partially covered with plastics and bears designs resulting from these treatments. The test result also mentions that the said fabric is coated only on one side. On plain ....
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....fabric fulfills this criteria/condition also for being classified under Heading 5903. 12. In view of the above, we find that all the five criteria/condition required for the product of the appellant for being classified under the Heading 5903, have been fulfilled. We therefore, find, that based on the test results of the sample product/fabric(obtained by the appellant from ATIRA, Ahmedabad), the said product 'Fusible interlining fabric of cotton' is undoubtedly classifiable under Heading 5903 of the Customs Tariff Act, 1975(51 of 1975). 13. Although we have decided the classification of fusible interlining fabrics of cotton manufactured by the appellant, we feel the need to refer to the relevant headings of Chapter 52 of the First Schedule of the Customs Tariff Act, 1975(51 of 1975) also, since, the appellant is of the view that the subject goods should be classifiable under Chapter 52 of the said Tariff Act. As per the test results of ATIRA, the product of the appellant is a fabric containing more than 85% cotton. Also, on going through the various headings covered under Chapter 52 and relying on the theory of elimination, we find that the product of the appellant would not ....
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....in weave : 5209 32 -- 3-thread or 4-thread twill, including cross twill : 5209 39 -- Other fabrics : 5209 41 -- Plain weave : 5209 42 00 -- Denim 5209 43 -- Other fabrics of 3-thread or 4-thread twill, including cross twill : 5209 49 -- Other fabrics : 5209 51 -- Plain weave Lungis 5209 52 -- 3-thread or 4-thread twill, including cross twill : 5209 59 -- Other fabrics : 5212 OTHER WOVEN FABRICS OF COTTON - Weighing not more than 200 g/m2 : 5212 11 00 -- Unbleached 5212 12 00 -- Bleached 5212 13 00 -- Dyed 5212 14 00 -- Of yarns of different colours 5212 15 00 -- Printed - Weighing more than 200 g/m2 : 5212 21 00 -- Unbleached m2 5212 22 00 -- Bleached m2 5212 23 00 -- Dyed 5212 24 00 -- Of yarns of different colours 5212 25 00 -- Printed 13.2 Chapter notes of Chapter 52 read as under: SUB-HEADING NOTE: For the purposes of sub-headings 5209 42 and 5211 42, the expression 'denim' means fabrics of yarns of different colours, of 3 - thread or 4 - thread twill, including broken twill, warp faced, the warp yarns of which ar....
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....abrics of cotton' has already been compared with the criteria/exclusion clauses of Sr.No.1 to 5 of Chapter Note 2(a) of Chapter 59 (which has been elaborated in detail in para 11.5) and it has been proved beyond doubt that the product of the appellant is specifically covered under Heading 5903 of the Customs Tariff Act, 1975. 15. The appellant has also stated that the GAAR has not commented or given its findings in their Ruling with regard to the case of Madura Coats pvt. ltd. vs. CBEC, New Delhi for not considering the appellant's claim. In this regard, we find that the Appellate Tribunal of Chennai, in the case of Madura Coats pvt. ltd. has discussed the issue of fusible interlining fabrics as under and ruled in favour of the appellant M/s. Madura Coats pvt. ltd. on the following grounds: (a) fusible interlining fabrics were initially classified under various chapters from chapter 50 to 55 of the tariff depending upon the nature of the fabrics under the erstwhile Central Excise regime. (b) The Board had vide Circular dated 02.09.1988 clarified that fusible interlining cloth, to merit classification as coated fabrics under CETH 5903, should meet the following ....
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.... quasi-judicial power of the authorities. (g) The said order of the Single Judge of the Madras High Court was challenged by the Department before the Division Bench of the Madras High Court under W.A.No.507 of 2005 wherein vide order and judgement dated 05.01.2009, the Hon'ble Division Bench of the Madras High Court dismissed the Writ Appeal and upheld the judgement of the Single Judge as regards the quashing of the circular in view of Section 37B of the Central Excise Act, however no opinion was rendered on the merit of the case and the assessing officer was directed to adjudicate the matter on its own merits. (h) Upon adjudication of the case by the assessing authorities, the issue was held against M/s. Madura Coats pvt.ltd. which became a subject matter of appeal being Appeal No. E/31/2012-DB before the Appellate Tribunal, Chennai. (i) The Appellate Tribunal, Chennai, by Order No.41941/2018 dated 19.06.2018 in the case of M/s.Madura Coats pvt.ltd. vs. Commissioner of Central Excise in Appeal No.E/31/2012 had held that the product 'Fusible Interlining Fabrics of Cotton' were not classifiable under Chapter 5903 but was correctly classifiable under Chapte....
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....vii) of the said order: '(v) While striking down the above mentioned Circular No. 433/66/98-CX-6 dated 27/11/1998 as ultra vires and contrary to Section 37B of the Central Excise Act, 1944, the Ld. Single Bench of Madras High Court in the case of Madura coats reported in 2004 (163) ELT 164 (Mad.), took no notice of the applicability of the Explanatory Notes to the HSN Code in deciding a classification issue under the Excise Tariff. Although not stated explicitly, the court held the interpretation of the law, as made in Circular No. 5/89 dated 15/06/1989, a binding legal provision, and the contrary view is illegal and ultra vires. (vi) Upon appeal, the division Bench of the Madras High Court, in its order dated 05/01/2009 in WA No. 507 of 2005, refrained from expressing any view on the legality of the said Circular so that the assessing officer could apply his judgment without any bias. The court however, set aside the impugned Circular that the assessing officer had quoted in a show cause notice in violation of the provisions of Section 37B of the CEA'44. Such setting aside of the impugned Circular restored the SCN. The Division Bench however, categorically stated....
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....lly covered but is covered with plastic polymer on one side. Assuming that the fabric of the appellant is partially coated or partially covered with plastic polymer as submitted by them, it would not fulfill the exclusion clause of Chapter Note 2(a)(4) of Chapter 59 and would therefore not fall under the Heading 5903 for falling under the exclusion clause of Chapter Note 2(a)(4) of Chapter 59 under these circumstances. However, since, according to Circular No.433/66/98-CX-6 dated 27/11/1998, such classification should be treated as an exception to Chapter Note 2(a)(4) to Chapter 59, the fabric of the appellant would be covered under Heading 5903 only in view of the provisions of the said circular. 16.2 Further, it is also seen that the appellant has, nowhere in their grounds of appeal or in their written or oral submissions, taken the view that Circular No.433/66/98-CX6 dated 27/11/1998 has erred in treating fusible interlining cloth as a category of textile fabric that is spattered by spraying with visible particles of thermoplastic material and is capable of providing a bond to other fabrics or materials on the application of heat and pressure. In the absence of any such submi....
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....tion. Circular No. 433/66/98-CX-6 dated 27/11/1998, therefore, reflects CBEC's view on the classification of fusible interlining cloth as on date. We, therefore, find that the GAAR has rightly relied on the aforementioned judgements as they endorse the view that fusible interlining fabrics are classifiable under Heading 5903. 17.2 Regarding the contention of the appellant that another case which is relied upon by the GAAR is the Ruling of Uttarakhand State Authority for Advance Ruling Order No.11/2019-20 dated 12.03.2020, that the perusal of the order of AAR, Uttarakhand reveals that they have not examined the decision of Madura Coats pvt.ltd. vs. CBEC, New Delhi mentioned above and that the ratio of the two decisions relied upon by the GAAR are not applicable to the appellant's case as in both the cases viz. Sadguru Paridhan pvt.ltd. and Ruby Mills ltd., they have not referred or analyzed the decision of Madura Coats pvt.ltd. vs. Commissioner of Central Excise, Tirunelveli on which the appellant has relied for the purpose of getting Ruling from GAAR, we have to state that all the aforementioned orders have been issued by the Authorities of Advance Ruling/Appellate Authorities o....