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TMI Blog2017 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant on these goods. Aggrieved by the said orders, the appellants are before Tribunal. 2. Ld. Counsel for the appellant argued that there product Fibre Aluminium Bobbin is manufactured out of Aluminium and plastic. The appellant had sought to classify the same under heading No.8448.0. However the classification was changed adjudication order dated 26.11.1993 to heading No.7616.90 by the Assistant Commissioner. The order dated 26.11.1993 of Assistant Commissioner classifying the said product under heading No.7616.90 was set-aside by the Commissioner (Appeals) vide orders dated 12.07.96 and the product was held to be classifiable under heading No.3923.90. Vide order dated 13.12.1996 the Assistant Commissioner confirmed the demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals), Central Excise & Customs, Ahmedabad classifying the subject product under Chapter 39.23. I find that neither the Revwenue nor the appellant had preferred any appeal against the said OIA hence the said OIA has achieved finality. If the Commissioner (Appeals) order was not proper, the Revenue should have filed appeal with Tribunal against the said OIA. Therefore, questing of reinstating the OIO NO.143 to 145/CL-D/93 dated 26.11.1993 does not arise. 8. I find that the show cause notices were issued to the appellant proposing classification of the product viz. Fibre Aluminium Bobbins Dynamically Balanced under Chapter SH 7616.90 instead of Chapter SH 8448.00 of the CETA, 1985 claimed by the appellant. The classification list were or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) vide OIA dated 16.08.96. Neither the appellant nor the department has filed any appeal against the said order hence said OIA has achieved finality." Aggrieved by the said order, Revenue filed an appeal before Tribunal. Tribunal set-aside the said order of Commissioner (Appeals) dated 27.01.2006 to re-examine the issue in light of the decision of Tribunal in the case of Nita Industries vs. Commissioner of Central Excise, Rajkot 2002 (282) ELT 706 (Tri.-Mumbai) and in the case of J. K. Synthetics Ltd. vs. CCE Kanpur-2006 (202) ELT 138 (Tri.-Del.). Consequently, the Commissioner (Appeals) passed the impugned order dated 19.05.2008 wherein relying on the decisions in the case of Nita Industries (supra) and J. K. Synthetic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the decision of this Tribunal in the case of Nita Industries (supra) was based on predominance of weight of material used. If the same is applied to instant case the product would be classifiable under 3923 as predominant in the product is plastic and not aluminium. 3. Ld. AR relies on the impugned order. 4. We have gone through the rival submissions. Undisputedly bobbins are item used for conveyance of yarn. The yarn after and during manufacture is wound on bobbins and the same is cleared as such. The yarn when it is used for texturising or any further processing is used alongwith the said bobbins as the said bobbins are designed to with stand very high RPM during processing. Thus, it is apparent that the bobbins are designed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 923.90 a specifically covers "articles for conveyance or packing of goods of plastic whereas the heading No. 7616.90 is a residuary heading covering Other articles of Aluminium". It is apparent that the description "article for conveyance or packing of goods" is more specific description. Ld. Counsel has relied on the decision of Hon'ble Apex Court in the case of Commissioner of Commercial Tax, U. P. vs. A. R. Thermosets (Pvt.) Ltd. 2016 (339) ELT (S.C.). Hon'ble Apex Court in the said case observed as follows:- "22. In this regard, another aspect needs to be noted. The Revenue does not rely upon another Entry under which bitumen emulsion can be taxed. The Revenue relies upon the residuary Entry which would only include goods, which canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 = 2006 (196) E.L.T. 400 (S.C.) stating that residuary Entry is made to cover only those category of goods which clearly fall outside the ambit of the main Entry. The opinion proceeds further to state that unless the Revenue can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be made to the residuary Entry." The heading Nos. 7616 and 3923 reads as follows:- 76.16 Other articles of aluminium 7616.10 Nails, tacks, staples (other than those of heading No. 83.05), screws, bolts, nuts, screw hooks, rivets, cotters, cotter-pins, washers and similar articles - 30% 7616.90 Other - 35% 39.23 Articles for the conveyance or pac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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