AI Drafter 
TaxTMI 
TaxTMI 
2023 (7) TMI 490
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....tuffed at factory premises of the Respondent under supervision of jurisdictional Central Excise Officers. On going through the various export documents furnished by the Respondent, it was noticed that the respondent had declared HS code of the export goods as 63053200 in their Invoices & Packing lists whereas in the ARE-1s they mentioned "Flexible Intermediate Bulk Containers -HSN code 63053200 ...C.Ex. Tariff 39231090. Hence, it was observed that for central Excise purpose the respondent had declared HS code of the subject goods under Chapter 39 and for the Customs purpose they declared HS Code under Chapter 63. Since the goods appeared to be classifiable under Chapter 39 of Customs Tariff Act, 1975 a query was raised in the EDI system and the same was conveyed to the respondent. The samples of the goods were also drawn for visual inspection as well as for laboratory testing. The respondent had requested for provisional assessment of the shipping bills, hence the said 06 shipping bills were assessed provisionally and shipment of the consignments were allowed. The Assistant Commissioner of Customs, Custom House. Pipavav (here-in-after referred to as "the Adjudicating Authority") af....
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.... 5.1 In view of above observations the Appellate Authority vide Order-in-Appeal No. 12/Commr(A)/JMN/2013 dated 23.01.2013 (here-in-after referred to as "the Appellate Order") has upheld the classification of flexible intermediate bulk containers under chapter 63053200. Accordingly, the Appellate Authority set aside the order passed by the Adjudicating Authority and allowed the appeal filed by the respondent. 6. The department feeling aggrieved by the order of appellate authority has filed the present appeal on the basis of following grounds of appeal:- 6.1 That the Appellate Authority has decided the matter in favour of the respondent mainly on the grounds that Customs Tariff Act is having specific sub-heading No. 6305320 for the goods Flexible Intermediate Bulk Container. However, the Appellate Order has failed to take into consideration the fact that the respondent showed different classification for the same goods declared as Flexible Intermediate Bulk Container i.c.. for Central Excise purpose he showed Central Excise Tariff Sub-heading No. 39231090 whereas for customs purpose and for availing export benefits they showed under Customs Tariff Sub-Heading No. 6305320. Cen....
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....aboratory, Kandla certified that the goods exported by the respondent was plastic articles and accordingly confirmed the view of the Adjudicating Authority. However, the Appellate Authority has not considered any of such elaborate findings of the Adjudicating Authority and decided the matter in favour of the Respondent. 6.4 That the Adjudicating Authority has also relied upon Board's circular No. 42/2011-Cus dated 22.09.2011, wherein, it has been clarified that FIBC which are big or bulk bags or super sacks made of polymers of ethylene and other plastic material would be classifiable under Chapter 39 of the drawback schedule. Since tariff items and descriptions of goods in the drawback schedule have been aligned with the tariff and descriptions of goods in the First Schedule to the Customs tariff Act. 1975 at four digit level the clarification though issued in connection with the drawback matter, is quite relevant from the facts and circumstances of the present case. The Appellate Authority has not given any findings as to how the spirit of above clarification by Board is not applicable to the instant case, 6.5 That the Adjudicating Authority has relied upon Hon'ble H....
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....h or yarn or garment or any other article made wholly or in part of - (i) cotton; or (ii) wool; or (iii) silk; or (iv) artificial silk or other fibre, and includes fibre;" Therefore, according to the above definition, any fabric or cloth or yarn or garment if made wholly or in part of cotton, wool, silk, artificial silk or other fibre shall be called textiles. The definition of "fibre" includes the regenerated cellulose, rayon, nylon and the like. Nowhere in the aforesaid definition of "fibre" or "textiles" plastic has been mentioned as a commodity to be included in the definition of "fib e" or "textiles". Now in the Shree Radhe Industries case (supra) and the Shellya Industries case (supra) irrespective of the entries in the tariff as prevailing then, it has been held that the HDPE sacks are articles made of plastic; they are made of high density polyethylene which is a plastic raw material and it has further been held that they are not man-made filament yarn but are articles of plastic. The Circular of the Central Board of Direct Taxes dated 20-11-1985 also clearly says that the Board has decided that so long as the finished articles o....
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....as plastic woven sacks, then it cannot be held that the strips with which such bags are woven are the strips of synthetic textile material. 20. Thus, the view of the Textile Commissioner as discussed above, the registration by the DGTD of the factory of the petitioner, the definition of "textile" and "fibre" as discussed above, the process of the manufacture of the HDPE tapes, the earlier judgments of the CEGAT approved by the Supreme Court and accepted by the Department, all clearly go to show that the HDPE bags are the bags woven by the plastic strips and they, therefore, are goods of plastic and the material used for weaving those bags being the strips of plastic made from plastic granules, the strips of plastic used for weaving the aforesaid HDPE woven sacks has to be classified as an Item under entry 39.20 of Chapter 39 and not under entry 54.06 of Chapter 54. Accordingly the entries of the finished goods have also to be made under the proper Chapter of the Tariff Act treating them as the finished goods made of plastic strips." 8. The learned Advocate took us through that the decision of Hon'ble High Court of Gujarat relied upon by him specially para 52-58 and the ....
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....ts & Spencer (Asia) Ltd Vs. State of Haryana as reported in 1983 (13) ELT 1607 (S.C) but the same was in context of the Punjab General Sales Tax Act, 1948 wherein the terms 'textile' was not defined and therefore the same was interpreted by the Supreme Court in the popular sense of the meaning, which definition has been adopted by the Hon'ble Gujarat High Court in the case of M/s CTM Technical Textiles Ltd Vs. UOI in 2020 (12) TMI 1100- Gujarat High Court. That the decision in the matter of Raj Pack Well Ltd Vs. UOI-1990 (50) ELT (201) (M.P.) was delivered, considering, various Statutory Chapter Notes and Section Notes applicable to Chapter 39 as well as various Chapters relating to textile material including Chapter 54 of the Central Excise Tariff Act, 1985. He further emphasise that during the impugned period the party itself was clearly classifying item under Chapter 39 and therefore was taking the convenience based stand on the Customs side. He also pointed out that even the Hon'ble Supreme Court has no where held in the matter of Porritts & Spencer (Asia) Ltd Vs. State of Haryana, that the statutory definition if available, the same could be ignored in favour of the general me....
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....for example, artificial straw) of an apparent width exceeding 5 mm, of plastics (Chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament or strip (Chapter 46); (h) woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39; (ij) woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with rubber, or articles thereof, of Chapter 40;" Chapter 59 "2. 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 15 and 30 °C (usually, Chapter 39); ....