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TMI Blog2010 (4) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the assessees 'under protest' on 27-11-2006. The Commissioner (Appeals) upheld the classification under Chapter 39; however, he held that the goods could not be considered either as tubes or pipes or hoses in order to be classifiable under CTH 3917 32 90, but were articles of "Polyolefin" classified under CTH 3926 90 80. Hence this appeal. 2. We have heard both sides. The leaflets produced by the appellants indicate as under : "Nylex PVD consist of one drain body - a unique high density polyethylene running to the 30". Nylex PVD consist of one drain body - a unique high density "the Mebradrain is a prefabricated strip drain consisting of a polypropylene core extruded into a highly flexible configuration and designed to transmit maximum water flow on both sides of the core. The core is wrapped with a strong and durable non-woven polypropylene filter fabric selected for its excellent filtration properiies. The filter jacket has an important function. It consists of a strong, durable non-woven polypropylene Typar geotextile. The jacket serves as filter to allow passage of ground water into the drain core while eliminating movement of soil particles and preventing clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reely. With the aid of these drains the consolidation period can be significantly reduced, and can usually be achieved within the construction period. Geotextiles are permeable fabrics which, when used in association with soil, have the ability to separate, filter reinforce, protect, or drain. As the use of geotextile fabrics has expanded there has been the introduction of geotextile composites and the development of products such as geogrids and meshes. Overall these materials are referred to as geosynthetics. Nylex PVD has been supplied to projects such as construction of roads, highways and expressways, treatment of ex-mining areas, contained yards and harbour construction, land re-clamation for the construction of airport runway, construction of tank farms, commercial development in ex-agriculture land etc." 4. From the above it is clear that the function of the goods is to drain through plastic material and to filter fine soil particles from entering into the drain system to avoid clogging, which is achieved by polyester textile material. 5. The Textile Committee's report dated 23-11-2006 is as under : "The outer material was of non-woven textiles — polyester 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cannot be fitted into any of the specifications mentioned therein. Sub-clause (a) specifies the goods as pieces cut to length or simply cut to rectangular, including square shape. However, the item is presented in the form of rolls and, therelore, cannot be categorised as pieces cut to length or shape. As regards sub-clause (b) the HSN Explanatory Notes to Chapter 5911 are relevant, the Note reads as under : "(B) Textile articles of a kind used for technical purposes (other than those of Headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7 (b) to the Chapter); for example : 1. Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.,) for example, straining cloths for oil presses made by assembly of several pieces of fabrics; bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing. 2. Textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration". 10. Rule 3(a) is not applicable as no heading provides for the more specific description of the goods and hence Rule 3(b) is attracted. The plastic material gives the goods their essential character, on the basis of the Textile Committee report as well as the samples of the item and further, the predominant function of draining is achieved by the Polyolefin material and the secondary function of filtering is achieved by the textil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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