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TMI Blog2015 (4) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... ional rate of duty as per the Notification No. 141/86-C.E., dated 1-3-1986. (Sr. No 8 of the table) and Notification No. 63/87, dated 1-3-1987 (Sr. No. 2 of the table). As per the said notifications concessional rate was Rs. 6.50 per sq. mtr. plus the duty for the time being leviable on the base fabrics under Chapter 52 if not already paid. However as per the tariff rate, rate of duty was 30% Adv. plus Rs. 7 per sq. mtr. plus the duty for the time being leviable on the base fabrics, if not already paid. The fabric in question (i.e., PVC coated/laminated) were manufactured by appellant using cotton hosiery (knitted cloth) falling under Chapter 60 of the Central Excise Tariff as base fabrics. Since the knitted cloth (base fabric) was classifiable under Chapter 60 and not under Chapter 52 as found out from the supplier's documents like consignment note, it was contended that in the show cause notice that the appellant is not entitled to the concessional rate of duty prescribed in the above said notification. On this observations show cause notice proposed demand of differential duty of Rs. 1,17,52,675.40 for the period from 1-3-86 to 31-1-89. The demand is on account of differential d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... column it is mentioned that base fabric should be under Chapter 52. He submits that subsequently in the judgment in the case of Natson Laminates v. Collector of Central Excise, Bombay [2000 (115) E.L.T. 444 (Tribunal)] and the Larger Bench judgment of this Tribunal in the case of CCE v. Entremonde Polyecoaters Ltd. [2000 (122) E.L.T. 700 (Tribunal LB)] it has been held that even though the base fabric is falling under chapter other than Chapter 52 exemption can be allowed. Therefore, the issue with the aforesaid judgment attained finality and the appellant is entitled for exemption of Notification No. 141/86-C.E., dated 1-3-1986 and Notification No. 63/87, dated 1-3-1987 even though the base fabric used is falling under Chapter 60. In this regard he placed reliance on case of Commissioner of C. Ex. Mumbai-I v. Asian Leather Cloth Mfg. Co. [2001 (127) E.L.T. 738 (Tri. - Mum.)]. On the issue of limitation he submits that appellant has filed the classification list from time to time wherein they claimed exemption under aforesaid notification and the said classification list is approved therefore, there is no suppression of facts or any misdeclaration on the part of the appellant, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the base fabric falling under Chapter 60 and not under Chapter 52 therefore, it merits classification under sub-heading 5903.99 and if that is so the same is covered under exemption Notification No. 141/86-C.E., dated 1-3-1986. (Sr. No. 10 of the table) and Notification No. 63/87, dated 1-3-1987 (Sr. No. 5 of the table). Following said observations in the de novo adjudication the ld. Commissioner passed the order giving following findings : 11.1 It is seen from the records of the case that M/s. BIL were engaged in the manufacture of PVC coated/laminated and the said fabrics were manufactured by using cotton hosiery cloth (knitted cloth) falling under Chapter 60 of the Central Excise Tariff as base fabrics. M/s. BIL were however, availing of the benefit of concessional rate of duty as per Notification No. 141/86 is alleged in the SCN that as per serial Nos. 8 and 2 of the table below the Notification Nos. 141/86, dated 1-3-1986 and 63/87, dated 1-3-1987 respectively, the concessional rate under the said notifications was not applicable to the goods made of base fabrics falling under any Chapter other than 52 of Central Excise Tariff and, hence, instead of the concessional ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986 also, the same three categories are reproduced as follows :- Sr. No. Heading No. or sub-heading No. Description of goods Rate of duty Condi-tion 8. 5903.19 Textile fabrics, impregnated, coated, covered or laminated with plastics Rs. 6 per square metre plus the duty for the time being leviable on the base fabrics under Chapter 52, if not already paid. - 9. 5903.29 Textile fabrics, impregnated, coated, covered or laminated with plastics Rs. 7.50 per square metre plus the duty for the time being leviable on base fabrics under Chapter 54 or Chapter 55, as the case may be, if not already paid - 10. 5903.99 Textile fabrics impregnated, coated, covered or laminated with plastics Rs. 8 per square metre - 11.4 From the Tariff description of Chapter Heading 59.03, as reproduced above and the text of the exemption Notifn. No. 141/86-C.E., dated 1-3-1986, the following facts came to light :- (a) Textile fabrics, impregnated, coated, covered or laminated with plastics, get classified under tariff sub-headings 5903.11 and 5903.19 only if such goods are manufactured by using cotton fabrics falling under Chapter 52 as the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in question, namely, coated fabrics manufactured by using cotton hosiery cloth (knitted fabrics) as base fabrics and classifiable under Chapter sub-heading 5903.99 of the Central Excise Tariff when read with Notifn. No. 141/86-C.E., dated 1-3-1986 which was subsequently replaced by exemption Notifn. No. 63/87-C.E., dated 1-3-1987 were as follows :- 11.4 From the Tariff description of Chapter Heading 59.03, as reproduced above and the text of the exemption Notifn. No. 141/86-C.E., dated 1-3-1986, the following facts came to light :- (a) Textile fabrics, impregnated, coated, covered or laminated with plastics, get classified under tariff sub-headings 5903.11 and 5903.19 only if such goods are manufactured by using cotton fabrics falling under Chapter 52 as the base fabrics. Similarly, such fabrics get classified under tariff sub-headings 5903.21 and 5903.29 only if such goods are manufactured by using man-made textile materials falling under Chapter 54 or 55 as the base fabrics. If such fabrics are manufactured by using any textile materials, other than cotton fabrics (Chapters 54 and 55), as base fabrics, they get classified under tariff sub-he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd date Sl. No. of the Table annexed to the Notification Effective rate of duty 1-3-86 to 28-2-87 141/86-C.E., dated 1-3-1986 10 Rs. 8/- per sq. Metre 1-3-87 to 28-2-88 63/87-C.E., dated 1-3-1987 5 Rs. 9/- per sq. Metre 1-3-88 to 31-1-89 63/87-C.E., dated 1-3-1987 amended by 81/88-C.E., dated 1-3-1988 5 Rs. 8.50 per sq. Metre 12.2 When the effective rates of duty as indicated in para 12.1 are applied to the goods in question manufactured and cleared by M/s. BIL, the actual amount of duty payable by them worked out as follows :- Period Quantity cleared in Sq. Metres Effective rate of duty Actual amount of duty payable - Rs. 1-3-86 to 28-2-87 676304 Rs. 8/- per sq. Metre 54,10,432 1-3-87 to 28-2-88 573414 Rs. 9/- per sq. Metre 51,60,726 1-3-88 to 31-1-89 356955 Rs. 8.50 per sq. Metre 30,34,117 (BED) 1,51,706 (SED) 12.3 From the above, the amount of duty short paid by M/s. BIL can be worked out as follows :- Period Actual amount of duty payable - Rs. Amount of duty paid Rs. Amount of duty short paid - Rs. 1-3-86 to 28-2-87 54,10,432 40,57,824 13,52, 608.00 1-3-87 to 28-2-88 51,60,726 40,13,898 11,46,828.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of the ld. Counsel that the show cause notice issued for the period 1-3-86 to 31-1-89 is time-barred as appellant had been filing their classification list from time to time and same were approved, hence, there was no suppression of facts and misdeclaration. We observed that in the classification list the appellant admittedly mentioned "rate 6 per sq. mtr. plus the duty for the time being leviable on the base fabrics under Chapter 52, if not already paid". From this mention it is clear that department is under belief that base fabric used by the appellant is falling under Chapter 52 whereas the appellant used the base fabric which is falling under Chapter 60, therefore, this is a clear misdeclaration of the fact. As regards to submission of ld. Counsel that stock was verified physically by the departmental officer, we are of the view that though the stock of the goods was verified but from the stock verification officer cannot ascertain whether the base fabric used in the product is falling under Chapter 52 or Chapter 60. Therefore, we do not agree with the submission of the ld. Counsel on this count. We, therefore, are of the view that there is clear suppression of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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