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TMI Blog2010 (12) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... other dt. 3.5.2002 covering the period April 2001 to August 2001 were issued. The first notice proposed classification under Chapter Heading 56.06 while the second one proposed classification under CET sub-heading 5205.11. The first notice was adjudicated by the Asst. Commissioner vide order dt. 30.8.2001, rejecting the proposed classification under chapter heading 56.06 on the ground that covered spandex yarn (goods in question) is not similar to gimped yarn (Heading 56.06 inter alia covers gimped yarn) both in composition and usage and classifying the goods under CET sub heading 5205.11 as single yarn containing 85% or more by weight of cotton in or in relation to manufacture of which any process is ordinarily carried on with the aid of power. The demand for the period Dec 2000 to March 2001 was confirmed and the demand for the period June 2000 to Nov 2000 was dropped as the appellant had already discharged the duty liability applicable under CET sub- heading 5205.11 during this period. The demand for the period April 2001 to August 2001 was confirmed by order dt. 26.7.02 of the Asst. Commissioner, upholding the proposal in the show-cause notice for classification under CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demands accordingly and the adjudication orders were upheld by the Commissioner (Appeals). 5. We have heard both sides. Lycra Core Spun Yarn/ Spandex is composed of core of lycra/spandex surrounded by staple fibres. The manufacturing process consists of feeding of filament yarn namely Spandex to a spinning frame where it is sheathed by cotton fibres which are fed in the form of rovings of cotton. 6. Heading 56.06 covers Gimped Yarn and strip and the like of heading 54.04 or 54.05. For a yarn to be considered as gimped yarn, both core yarn and the covering material should be yarns. In the instant case, although core yarn is a filament yarn, covering material is cotton roving/cotton fibre which has not been spun into yarn. Classification under Chapter Heading 56.06 is based on tariff entry that existed prior to its amendment w.e.f. 1.3.95. Prior to amendment, chapter heading specifically included special yarn. With the amendment, the Central Excise Tariff for Chapters 50-63 (except 61 & 62) were broadly aligned with first Schedule to the Customs Tariff Act, 1975 and corresponding changes were also made in the tariff relating to additional exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials etc. which is distinct from the use to which core yarn is put. The decision of the Tribunal in Rajasthan Spinning & Weaving Mills [2001 (133) ELT 126] is not applicable to the goods in question as in that case the goods consisted of yarn and not fibre spirally wound around another yarn and further for the reason that relevant tariff headings during the period of dispute in that case were entirely different from those during the period involved in the case of Pallipalayam Spinners Pvt. Ltd. 8. Classification under CET sub heading 5205.90 as claimed by the assessees is ruled out in the light of Tribunals decision in CCE Ahmedabad Vs ARCEE Nettings [1999 (110) ELT 680]. In that case, the respondents manufactured round mesh mosquito nettings which were being classified under CET sub- heading 5804.90. In the 1995 budget, the sub-headings under chapter heading 58.04 were amended. The respondents filed classification list thereafter, continuing to claim classification under CET sub-heading 5804.90. The Asst. Commissioner held that the goods would be classifiable under CET sub-heading 5804.11; this finding was set aside by the Commissioner (Appeals) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the article or group of articles which has (single dash). 5. Reading the Heading 58.04 prior to its amendment? accordingly, it then follows that when the description lace .... power or steam was preceded by (single dash) and sub-headings 5804.11, 5804.12 and 5804.19 occurring thereafter were preceded by (double dash) it would mean that these three were sub-classification of immediately preceding description, lace. In that context, Tulles and net fabrics would only be covered by the residuary sub-heading 5804.90. But after the amendment the description in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power or steam is preceded by a single dash, and therefore, when the sub-headings 5804.11, 5804.12 and 5804.19 which follow and which are preceded by double dash have to be read as sub-classification of the description in the main Heading 58.04. Hence, the Asstt. Commissioner is right when he held that with the amendment in the Heading 58.04, items other than lace manufactured with the aid of power which were earlier classified under sub-heading 5804.90 will also now fall for classification under sub-heading 580 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Schedule, the description of an article or group of articles under a heading is preceded by -, the said article or group of articles shall be taken to be a sub-classification of the article or group of articles covered by the said heading. Where, the description of an article or group of articles is preceded by -, the said article or group of articles shall be taken to be a sub-classification of the immediately preceding description of article or group of articles. As discussed above we find that the products in question are preparation of chicken meat which are fried. From this General Explanatory Note we find that the products in question are rightly classifiable under sub-heading 1601.19 of the tariff as cooked-preparation of meat of Chicken other than prawns and shrimps put up in a unit containers and ordinarily intended for sale. 9. In the case of CCE Bombay Vs Hindustan Metal Processing Works [1998 (97) ELT 516], the Tribunal has held that the condition preceded by single dash is applicable to sub-classification of the heading and not applicable to the other classification preceded by a single dash. 4. We have heard both sides. For the sake of clarity? we reproduce the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is a single yarn with lycra as the core. The said covered filament is sheathed with cotton fibres straight from roving without spinning the roving into yarn. The stage of cotton yarn does not arise in as much as it is not independently spun in the manufacture of impugned goods. The percentage content of lycra / cotton is stated to be 12% / 88%. 11. In terms of Section note 2(A) to section XI of CETA 1985 goods of Chapters 52 to 55 consisting of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over any other single textile material. In the present case the covered spandex yarn is a combination of two textile materials viz., cotton fibre and spandex yarn. Admittedly cotton fibre predominates by weight. There is no dispute about the classification of the impugned goods under Heading 52.05. The dispute is only with reference to the sub-heading. 12. As per HSN (page 780 Vol 2), Single yarn means yarns composed either of:- a) Staple fibres, usually held together by twist (spun yarns) or of b) One filament (monofilament) of headings 54.02 to 54 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Most frequently the covering threads completely cover the core, but in some times the turns of the spiral are spaced; in the latter case, the product may have somewhat the appearance of certain multiple (folded), cabled or fancy yarns of Chapters 50 to 55, but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads. 17. The core of the gimped yarn of this heading is usually of cotton, other vegetable fibres or man-made fibres and the covering threads are usually finer and more glossy (eg., silk, mercerized cotton or man-made fibres). 18. Gimped yarns with cores of other materials are not necessarily excluded provided the product has the essential character of a textile article. 19. Gimped yarns are used as a trimming and also very largely for the manufacture of such trimmings. Some, however, are also suitable for other uses, for example, as buttonhole cord, in embroidery or for tying parcels. 20. From the above it could be seen that, for the goods to be gimped yarn both the core yarn and the covered material should be yarns where as in the instant case the subject goods consist of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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