TaxTMI 
TaxTMI 
2024 (8) TMI 139
X X X X Extracts X X X X
X X X X Extracts X X X X
....taken up for hearing. 4. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs : "A. That Your Lordships may be pleased to issue a writ of prohibition or any other appropriate writ, order or direction completely and permanently prohibiting the respondents, their servants and agents from recovering GST from the petitioners on Geo Membrane Fabrics under heading/Tariff Code 39269099 of the Tariff; B. That Your Lordships may be pleased to issue a Writ of Certiorari or a Writ of Mandamus or any other appropriate writ, order or direction quashing and setting aside Advance Ruling No. GUJ/GAAR/R/107/2020 dated 30.12.2020 (Annexure-D) passed by the Gujarat AAR, thereby holding and declaring that the goods manufactured by the petitioners, namely, Geo Membrane for water proof lining fabrics merit classification under Tariff 59111000 and are chargeable to GST @12% Adv." 5. The brief facts of the case are that the petitioner a partnership firm which has come into effect from 13.10.2019, is manufacturer of Geo Membrane which is a textile fabrics. The petitioner - firm is also registered under the prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aminated again with one more layer of fabric to form a coated/laminated fabric of higher thickness Trimming of edges is undertaken, and such coated/laminated fabric in rolls is subjected to inspection, where defects, if any are removed and the ends of the fabrics are rejoined by heat sealing. After inspection of such coated/laminated fabric rolls, they are sent for overlap sealing to increase the width of the coated/laminated fabric and then they are cut in required length to obtain the required size of Geo Membranes. These final products, le products or articles of textile fabrics are packed, and are ready for sale and supply." 7. It is the case of the petitioner that the Geo Membrane / Geo Grid fabrics are used for reinforcement of ponds, canals and such structures. HDPE reinforced Geo Membrane lined aquaculture ponds teamed with Biofloc technology is a highly beneficial bacterial colony based culture which keeps diseases at bay making it an ecologically sustainable symbiotic system. Biofloc technology ensures minimal water exchange and keep the pH levels steady by feeding on the nitrogen produced by the fish & shrimps. In conventional farming where Biofloc technology is not u....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Hon'ble Madhya Pradesh High Court in case of Raj Packwell Ltd. 1990 (50) ELT 201 (MP) in respect of classification of plastic tapes and bags under the Central Excise Tariff and came to the conclusion that Geo Membrane produced by the petitioners merit classification under heading 39269090 chargeable to GST @ 18% p.a. from 15.11.2017 onwards. 10. It is the case of the petitioner that Geo Membrane is also manufactured by various registered persons all over the country including the State of Gujarat and such manufacturers disputed with the Revenue authorities who were classifying the products under Chapter 39 as articles of plastic and not only under GST tariff but also under the Central Excise Tariff and because such goods were chargeable to excise duty till 30th June, 2017, such manufacturers, namely, CTM Technical Textiles Ltd. filed Special Civil Application No. 8332 of 2020 before this Court, challenging the proceedings initiated by the Revenue authorities for levying excise duty on Geo Grid / Geo Membrane / Geo Fabrics under Chapter 39 and also challenged few clarifications issued by the Government during Central Excise regime and also the view of the Revenue that cla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pliers of the goods in question are recognized and registered for supplying these goods and the price fixed by the Government agencies is paid to all the suppliers at a uniform rate. It was submitted that the petitioner is, therefore, continuously suffering loss of 6% on such uniform rate paid by the Government agencies in view of decision of the respondent No. 4 classifying the same products under Chapter 39 so far as the petitioner is concerned, as the decision of the respondent No. 4 is binding upon the petitioner as per the provision of Section 103 of the GST Act. 16. Learned advocate Mr. Dave further submitted that the order of respondent No. 4 classifying the articles of Geo Membrane under Tariff Item 39269099 chargeable to 18% GST is wholly illegal and without jurisdiction and the order as well as recovery of GST from the petitioner under the classification of Chapter 39 at higher rate of 18% are contrary to the law laid down by the Hon'ble Supreme Court in case of Porritts & Spencer (Asia) Ltd., reported in 1983 (13) ELT 1607 (SC) and also contrary to the law laid down by this Court in case of M/s. CTM Technical Textiles Ltd. rendered in Special Civil Application No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner was not aware about such judgment in the said case was pronounced on 24.12.2020 after the hearing was concluded by the respondent No. 4 on 23.12.2020. It was, therefore, submitted that the petitioner could not refer to the said judgment and being not aware about the law laid down by this Court and the petitioner is suffering adverse consequence of the ruling rendered by the respondent No. 4 which was based on the judgment of the Hon'ble Madhya Pradesh High Court in case of M/s. Raj Packwell Ltd. (supra). 20. On the other hand, learned advocate Ms. Hetvi Sancheti appearing for the respondent submitted that the writ petition is not maintainable as the order passed by the Advance Ruling Authority can be challenged before the appellate authority under the provision of Section 100 of the GST Act. It was, therefore, submitted that the petitioner should be relegated to avail the alternative efficacious remedy under the provision of the GST Act. It was submitted that the products manufactured by the petitioner would fall under Chapter-39 of the Tariff and not under Chapter-59 as the same is an article of plastic and when the details of the product are gone through and the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... set-aside the impugned Order in Original passed by the respondent No. 2 dated 30.6.2020 and remit the entire matter to the respondent No. 2 for fresh consideration after giving an adequate opportunity of hearing to the writ-applicants and also keeping in mind the prima facie observations made by this Court in this judgment. We also intend to direct the Union of India to re-examine the CBEC Circular/Order No. 8/92 dated 24.9.1992 and also the Ahmedabad Collectorate Trade Notice No. 78/94 dated 9.5.1994 in light of the findings recorded by this Court in this judgment. 48. The writ-applicants have prayed to quash and set-aside the CBEC Circular/Order No. 8/92 dated 24.9.1992 and also the Ahmedabad Collectorate Trade Notice No. 78/94 dated 9.5.1994, as relying on the same, the goods manufactured by the writ-applicants are being classified as the articles of plastics under the Heading 3926 of the Central Excise Tariffs. The challenge to the CBEC Circular/Order and also the Trade Notice referred to above is substantially on the ground that the excise duty is being demanded from the writ-applicant based on such order and trade notice, whereas identical goods are being accepted a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... with which the statute is dealing would attribute to it". There we are in complete agreement with the Judges who held in favour of the Revenue and against the assessee. But the question is : What result does the application of this test yield ? Are 'dryer felts' not 'textiles' within the ordinary accepted meaning of that word ? The word 'textiles' is derived from the Latin 'texere' which means 'to weave' and it means any woven fabric. When yarn, whether cotton, silk, woollen,rayon, nylon or of any other description or made out of any other material is woven into a fabric, what comes into being is a 'textile' and it is known as such. It may be cotton textile, silk textile, woollen textile, rayon textile, nylon textile or any other kind of textile. The method of weaving adopted may be the warp and woof pattern as is generally the case in most of the textiles, or it may be any other process or technique. There is such phenomenal advance in science and technology, so wondrous is the variety of fabrics manufactured from materials hitherto unknown or unthought of and so many are the new techniques invented for making fabric out of yarn that it would be most unwise to confine the weaving....
X X X X Extracts X X X X
X X X X Extracts X X X X
....chel knitting machine, whereas the Geo Grid fabrics are woven fabrics manufactured on the weaving machines. 58. The judgment in Raj Pack Well Ltd. (supra) relied upon on behalf of the respondents has nothing to do with the HDPE fabric, but it relates to the HDPE strips/tapes/sacks. The question whether fabric woven out of strips or tapes are textile products or not, was not involved in this judgment. The contention raised by the writ-applicants is that the woven fabric would be 'textile' irrespective of the method of weaving through any technique and the materials used for weaving may also be anything like cotton, silk, rayon, nylon or any other description or made out of any other material; but when any such material is woven into fabric, what comes into existence is a "textile". 59. A specific and categorical submission was raised by the writ-applicants before the authorities that similarly situated manufacturers located elsewhere in the State as well as in the country have classified similar products as textiles, and the Central Excise officers have not initiated any proceedings against them on the basis that the goods are articles of plastics chargeable to exc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the benefit of Notification No.6/2006 being contrary to the Board's circulars can be termed as without jurisdiction. 105. Mr. Dave is quite justified in submitting that the Central Excise is a central levy and, therefore, such a levy has to be collected uniformly from all similarly situated manufacturers located all throughout the country. If Excise authority of a particular Commissionerate or State refuses to allow benefit of exemption to manufacturers located in that Commissionerate or State but other manufacturers located elsewhere are allowed such exemption, then the same would be in violation of Article 14 of the Constitution of India and also of Article 19 (1) (g) of the Constitution of India. We may, at this stage, profitably quote judgment delivered by this High Court in the case of Ralli Engine Ltd. (supra), reported in 2004 (62) RLT 607 (Guj.) "The petition contains challenge to the discriminatory treatment being given by the Commissionerates in three different States, i.e., Gujarat, Maharashtra and Tamil Nadu in respect of the same product. The petitioner-Company is a manufacturer of agricultural knapsack sprayer engine which is used as a part/c....