TMI Blog2016 (10) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... of strips of non-uniform width (ranging from 6 mm to 1 cm). If this is the description of the sample sent to the Chemical Examiner, then it is very clear that these products cannot be classified as laminated textile fabrics. In view of the foregoing, we hold that the demands confirmed by the lower authorities in the case in hand are unsustainable and liable to be set aside and we do so. - Appeal No. E/1227/05-Mum - A/90755/16/EB - Dated:- 5-10-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Gajendra Jain, Advocate, for appellant Shri V.K. Agarwal, Additional Commissioner (AR), for respondent ORDER Per M.V. Ravindran This appeal is directed against order-in-appeal No. BR/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination whether the item in question answers the description of laminated textile fabric and if so, the use to which the same has been put. On remand, the adjudicating authority as well as the first appellate authority have again confirmed the demands raised. Hence the matter is being agitated before this Bench. 3. Learned counsel would draw our attention to the fact the lower authorities have not considered their main submission that the order-in-appeal dated 31.1.2005 and the order-in-original dated 28.4.2004, which was passed on remand from the apex court, has gone beyond the scope of the show cause notice as there is no allegation in the show cause notice that the foam patties are chindies. It is his submission that since it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submission that while filing classification list, the appellant had described the product as foam patti i.e., side strips of width not exceeding 3 cm. It is his submission that this classification list description is not disputed by the lower authorities. He would submit that the contention of the department as to foam patti is to be treated as fabric is unsustainable as foam patti is nothing but waste and scrap generated and even the Deputy Chief Chemist s report indicates that the foam patti is of uneven width. It is his submission that the adjudicating authority has relied upon various notifications which prescribe effective rate of duty for sub-standard or damaged fabrics falling under sub-heading 5903.19 in order to classify the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed affidavits from various dealers, which are not controverted. It is his further submission that the demand of the duty has been raised by converting the quantity of foam patti cleared in weight into linear meters of fabrics. The value is ascertained as laminated fabrics and demand is confirmed, which is incorrect as during the period in question, the normal price was to be ascertained of the products cleared and not on presumptive nature of goods cleared. 4. Learned departmental representative, on the other hand, would draw our attention to the tariff entry as it was during the relevant period. He would submit that the chapter note to Chapter 59 clearly indicates that the products which arises during the course of manufacturing, are sq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant had filed a classification list 1/86 wherein these side trimmings have been described by them as foam patti and cleared as waste and scrap. In our view, the lower authorities have totally misconstrued the entire issue. We find that the impugned orders are not sustainable for more than one reason. 7.1 Firstly, when the matter was remanded back by the apex court, their Lordships had directed the lower authorities to consider whether the products in dispute i.e. foam patti which, according to the appellant, are waste and scrap, are laminated textile fabrics or otherwise . We find that both the lower authorities have not considered this aspect and the direction of the Hon ble Supreme Court in its correct perspective and have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products are not laminated textile fabrics. If that is so, the demands raised on the appellant on this ground that they are chindies are not sustainable. 7.4 Fourthly, we find that the first appellate authority has relied upon the Deputy Chief Chemist s report to hold that these items are classifiable under chapter 59.03. We find that the Chemical Examiner s report is totally inconclusive and in fact in any way supports the contentions of the appellant inasmuch, the Chemical Examiner has held that the sample is in the form of strips of non-uniform width (ranging from 6 mm to 1 cm). If this is the description of the sample sent to the Chemical Examiner, then it is very clear that these products cannot be classified as laminated textile f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
