TMI Blog1998 (8) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... cations. The lamination of the P.U. foam sheet is on the wrong side (bottom side of the fabrics). Therefore, it was contended that as per Note 2 of Chapter 59, Heading 59.03 applies to all textile fabrics laminated with plastics whatever the weight per sq.meter and whatever the nature of the plastic material and in their products (1) the textile fabric which is predominant and costly is used which comes on top as a material meant for use and (2) the weight of the fabric is more than the weight of the P.U. foam sheet and (3) the use is as a fabric and not as a plastic (PU Foam Sheet). The further contention is that these are textile fabrics laminated with plastic and not plastic laminated with textile fabrics. It was their contention that the primary function of the product is the criteria of classification in terms of the ruling rendered in the case of C.C.E. v. Modern Roofings Ltd. as reported in 1990 (45) E.L.T. 174. It was also contended that the items do not come in Clause-5 of exclusion clause of Note 2(a) to Heading 59.03 which refers to plates, sheets or strips of cellular plastics combined with textile fabric where the fabric is present merely for reinforcing purposes. Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than by a resulting change in colour. Textile fabrics in which the impregnation, coating or covering cannot be seen 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. Examples of such fabrics are those impregnated with substances designed solely to render them crease-proof, moth-proof, unshrinkable or waterproof (e.g., waterproof gabardines and poplins). Textile fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are also classified in Chapters 50 to 55, 58 or 60. (2) That the products are not rigid, i.e., they can, without fracturing, be bent manually around a cylinder of a diameter of 7mm, at a temperature between 15oC and 30oC. (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 sub-paragraph (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Rule 3C of Rules for interpretation of schedule to the tariff. 4. We have heard Shri T.R. Shastry, learned advocate for the appellants and Shri S. Kannan, learned JDR for the Revenue. 5. Learned advocate reiterated the grounds urged above and which have been in the appeal memo. Learned SDR reiterated the findings given by the Collector (Appeals). 6. On careful consideration of the submissions, we are of the considered opinion that the items in issue are covered by tariff sub-headings 5903.29 and 5903.19 of CETA, 1985. Heading 59.03 refers to textile fabrics impregnated, coated, covered or laminated with plastics, other than those of Heading No. 59.02. The articles of base fabrics of cotton which are coated or laminated with preparation of low density polyethylene are covered under Chapter 5903.11 and others are covered under Heading 5903.19, whereas articles of base fabrics of man-made textile materials-coated or laminated with preparations of low density polyethylene are covered under sub-heading 5903.21 and others under 5903.29. We notice from the samples displayed that the functional character of the article in issue is that of fabric as the same is used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles of Section XI (textile and textile articles), Note 1 of Chapter 39 also states that throughout this schedule, any reference to `plastics also includes vulcanised fibre. The expression, however, does not apply to materials regarded as textile materials of Section XI. 7. Reading of explanatory notes under Chapter 59.03 clearly indicates that the item in question falls under Chapter 59. In terms of Ruling 3C of rules for the interpretation of the schedule, the goods cannot be classified by reference to A or B, then they shall be classified under the heading which occurs loss in the numerical order in such case which merits equivalent consideration. Therefore, even by going by the rules of interpretation, we have to prefer Chapter 59. Further, we notice that the CBEC by its Circular No. 161/72/95-CX, dated 13-12-1995 considered the classification of PVC leather cloth or rexine cloth and the aspect pertaining to the classification coming under Chapter 59.03 was discussed and held that such an article would fall only under Chapter 59. The circular is reproduced herein below :- Classification PVC leather cloth or rexine cloth classifiable under 59.03 Circular No. 161/72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rexine cloth), under Heading 59.03 is not hit by the exclusions under Chapter Note 2(a) of Chapter 59 of the Central Excise Tariff. 5. Section Note 1(d) of Section XI excludes fabrics impregnated, coated or laminated with plastics of Chapter 39 from the purview of Section XI. Similarly Chapter Note 2(k) under Chapter 39 of the CET excludes Textiles and Textile materials from purview of Chapter 39. Both these notes read in conjunction do not provide any basis for rejecting classification of Rexine Cloth either under Chapter 39 or under Textile and Textile Articles. 6. HSN contains expanded meaning of items covered under Heading 39.21. It covers plates, sheets, film, foil and strip of cellular plastics or those which have been reinforced, laminated, supported or similarly combined. Rexine cloth does not meet any of the criterion and does not appear to be covered by Heading 39.21. 7. In contrast, the detailed notes on Page 816 of the HSN Explanatory Notes clearly amplify that leather cloth is covered by Heading 59.03. The relevant extracts are :- In many of the textile fabrics classified here, the plastic material usually coloured, forms a surface layer which may be smooth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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