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M/s. Mehul Enterprises Versus Commissioner of Central Excise, Mumbai

2017 (12) TMI 325 - CESTAT MUMBAI

Clandestine removal - classification of goods - Flock printing of fabric - case of appellant is that the fabric partly covered with flock for design purpose is clearly excluded from heading 5907 therefore demand raised considering classification under 5907 is not sustainable - Held that: - As per tariff entry though after the main heading with one dash description is given as fabric covered partly or fully with textile flock or with preparation contained textile flock, however as per chapter not .....

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spute that flock printing was done for the purpose of design, therefore we are of the clear view that flock printed fabric with design is not classifiable under 5907. - After rejection of the proposal of the department regarding classification of subject goods under 5907, correct classification under 52,54,55 must be arrived at. This aspect has not been considered by the adjudicating authority - There is also a dispute that if the flock printing is done without aid power then product may no .....

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aid of power which is classifiable under CSH No. 5907.12 of the First Schedule to the Central Excise Tariff Act, 1985 and cleared the same clandestinely without payment of duty. The adjudicating authority confirmed the demand. Being aggrieved by the Order-in-Original appellant filed appeal before the Tribunal. The Tribunal after giving observations remanded the matter for denovo adjudication. In the Tribunals order it was directed to decide the classification depending upon predominance of the m .....

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gn is not covered under Chapter heading 5907 as per Chapter note 5(c) of Chapter 59, That the Adjudicating authority held that product is correctly not classifiable under 5907.12 therefore clause (c) of Chapter note (5) of Chapter 59 will be applicable. Accordingly the fabric partly covered with flock for design purpose is clearly excluded from heading 5907 therefore demand raised considering classification under 5907 is not sustainable. In this regard he placed reliance on the decision of Warne .....

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ctor of C. Ex.[1993(65) ELT 545(Tri.)] (c) CCE, Mumbai-V Vs. karan Creation Order no. A/130/11/EB/C-II dated 22-2-2011] It is his submission that it is second round of appeal, before this Tribunal, in the first round this tribunal has remanded the matter for considering that whether the printed fabric manufactured by the appellant bears design. It was held that if that to be so then product will not merit classification under heading 5907, there is no dispute that the Flock printing is in the fo .....

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ession of facts, Accordingly, demand is time bar. In support of his submission, he placed reliance on the following judgments: (a) Nizam Sugar Factory Vs. Collector of Central Excise, AP[2006(197) ELT 465(SC)] (b) Modipon Fibre Company Vs. Commissioner of C. Ex. Meerut[2007(218) ELT 8 (SC)] (c) AsHIWINI vaNASPATI Industries Pvt Ltd Vs. Collector of C. Ex. [1991(56) ELT 214(Tri.)] (d) Kapoor Lamp Shade Co. V. Commissioner of C. Ex. Delhi-IV[2015(319) ELT 170 (Tri. Del)]. He submits that the dispu .....

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ned textile flock classificable under Chapter 5907 therefore all the fabric on which flock printing was done either partially or fully it is correctly classifiable under 5907. He alternatively submits that appellant in their submissions have claimed that the goods are classifiable under 54/55 depending upon composition of the material therefore even if it is classifiable under 52,53,54,55, it is liable for duty for the reason that flock printing on the fabric carried out with aid of power which .....

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ay[1997(91)ELT 261(S.C.)] (e) O.K. Play (I) Ltd vs. Commissionero f C. Ex. Delhi-III(Gurgaon)[2004(171)ELT 378(Tri. Del.)] (f) Hydraulics Ltd Vs. Commissioner of Central Excise, Chennai[2001(133)ELT 201(Tri. Chennai)] As regard the limitation, he submits that letter of M/s. Meghana Creations relied upon by the appellant has no relation with activity of present appellant therefore letter given of M/s. Meghana enterprises will not support the case of the appellant accordingly, appellant have clear .....

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.07 Textile fabrics otherwise impregnated, Coated or covered; Painted canvas being theatrical scenery, studio back-cloths or the like Fabrics, covered partially or fully with textile flocks or with preparation containing textile flocks : 5907.11 On base fabrics of cotton 20% 5% 5907.12 -On base fabrics of man-made textile Material 20% 5% 5907.19 - 5907.30 -Other, in or in relation to the manufacture Nil of which no process is ordinarily carried on with the aid of power 20% Nil 5907.90 -Other 30% .....

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igns resulting from this treatment is excluded from heading 5907. From the combined reading of Tariff entry and chapter note 5(c)., we find that flock print on the fabric which resulted into design, the said flock printed fabric is excluded from heading 5907 and if the fabric is though printed with flock but it does not result into design, the said fabric will be classifiable under 5907. In this fact of the present case there is no dispute that flock printing was done for the purpose of design, .....

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