TMI Blog2018 (11) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that these goods are not fit for any other use in normal course. Case of Revenue is devoid of merits - Appeal dismissed - decided against Revenue. - C/51961 & 51963-51965/2018-DB - Final Order No. 53296-53299/2018 - Dated:- 19-11-2018 - Mr. Anil Choudhary, Member (Judicial) and Mr. Bijay Kumar, Member (Technical) Shri R.K. Manjhi, DR - for the appellant Shri Pradeep Jain, Advocate - for the respondent ORDER Per Bijay Kumar : Being aggrieved with the impugned order passed by Commissioner of Customs (Import), ICD, TKD wherein he has set aside the demand raised by Show Cause Notice F. No. DRI-HQ-CI/50/ENQ-13(INT-22)/2016 (Vyoma) dated 22.5.2017 issued by the Additional Director General (DRI) along with corrigendum/addendum dated 26.9.2017 to the respondents. The Revenue has filed these appeals. 2. The brief fact of the case is that the respondent/importer imported the consignment of polyester roller blinds fabric and PVC coated roller fabric, (component of roller blind) of respective size in Roll forms. The subject goods were imported classifying their product under CTH 63039200 and 59039090, based on the composition of imported fabric and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods, i.e. fabric is cut in different sizes for used in windows of different sizes. This is different and wider in scope that merely cutting to length. It has further been admitted in the said statement that the imported items are used as roller blinds after cutting and stitching the same. From the definition of made up as per Section Note 7 of Section XI of the Customs Tariff (same as in the Show Cause Notice), it appears that the imported goods cannot be termed as made up . (iii) The adjudicating authority has also referred and relied on Rule 2(a) of the General Rules for interpretation which inter alia states that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of complete or unfinished article. However, the preceding Rule 1 of the General Rules for Interpretation clearly states, inter alia, that for legal purpose, classification shall be determined in terms of heading and respective Section or Chapter Notes. The Chapter Note 1 of Chapter 63 states that sub-chapter 1 (which covers Tariff Heading 6303) app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in length and width. The important criteria of HSN note the heading also covers material in length so processed after weaving that it is clearly suitable for conversion by minor operation into finished articles of this heading which appropriately meet the present case. 6. Ld. Advocate impressed upon the fact that the adjudicating authority has erred in indicating that made up is not defined in the tariff, however, that does not alter the merit of the case. The ld. Adjudicating authority in this case has relied upon the definition in Unit-II of Customs Classification of Textile and Textile Articles under HSN, a private publication which even the DRI in its HSN has mentioned and referred. 7. The process of assembly has been detailed in the reply to show cause notice which says that the cutting does not change the basic structure and characteristic of the imported goods. The nature of the fabric is so strong that it does not require any type of stitching and binding. The important feature of this fabric is that it is created and designed for the use in the window covering only and cannot have any other application. Therefore, this fabric does not have any application other th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority in his order has clearly held that the goods are classifiable under the Heading as claimed by the importer on the grounds mentioned in para 34.1 to 34.9 which is reproduced as under: 34.1 Behind the elaborate SCN, the issue at hand is rather simple. The party, M/s Vyoma Decor, have been importing a product, which they have been declaring either as Component of Roller Blinds (Polyester Roller Blinds Window Fabric) (Made of polyester ready for use) or as Component of Roller Blinds (PVC coated Fabric) and classifying the same under CTH 63039200 and 59039090 based upon the composition of the fabric. The DRI s case is that to be classified under CTH 63039200, the imported items ought to be made up , that is to say, be ready to use without the need for further modification, which on the face of it the imported items are not. They therefore propose to classify them as fabrics, depending upon the nature of the fabric, i.e. under CTH 54077200, and some under CTH 59039090 itself. This is proposed to be done in respect of 2 live consignments (B/e No. 5348520 dated 23.5.16 and B/E No. 5802810 dated 29.6.16), certain goods seized in the godwons of the party (Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides more clarity on the nature of the products. He has stated that the roller blinds imported by him are basically rolls of fabrics, which are 30 mtr. to 40 mtr. in length and generally 1.80 to 3 mtr. in width. Shri Lohia has further stated that he sold the goods as they were imported, i.e. without any changes or cutting. The fabricator cuts these rolls in different sizes for use as roller blinds by cutting and stitching the same. The rolls imported by them cannot be used as roller blinds as such blinds are used mostly in windows of different sizes. 34.3 The DRI has no quarrel with this claim of the importer. In fact they appear to have used this very statement to buttress their allegation regarding the mis-classification of the product. 34.4 The entire edifice of the DRI s case is in fact based on the fact that the imported roller blinds are imported in rolls and cannot be used as such, without cutting and stitching the same. It is, therefore, necessary to see what precisely is in the claimed classification of the product CTH 63039200, which the DRI finds incommensurate with the nature of the products. The Chapter 63 relates to Other made up textile articles; sets; wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes Curtains (including drapes) and Interior blinds, curtains or bed valances. It is apparent that blinds are included in this heading. The question arises that if blind fabric in rolls which need to be cut as per the size of the windows, are not to be included in this heading, then which blinds will be included in the same? Since windows that are covered by blinds could be in a variety of sizes, can it be anybody s case that to qualify as blinds under heading 6303, they will be imported already in cut form to suit the dimension of the window that they are going to adorn? Such an argument is illogical on the face of it. It therefore appears that blind fabric in rolls, which only need to be cut to fit the size of the window, will fall under the heading no. 6303. Further, the fact that they need to be cut to size to fit the windows, does not mean that they cease to remain made ups ; as there is no change in their essential character and the cutting is merely to align them with the size of the windows. 34.7 The factual matrix of the case, as brought out in the written defence of the notices, also supports and above inference. The imported fabric is thick and made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ups , relied upon by the DRI, does allow a certain amount of separation by cutting and therefore supports this classification. 34.9 It is further noteworthy that the classification of this exact item had also come up for consideration in the 156th Meeting of the Customs Code Committee (Tariff and Nomenclature Section) of the European Commission, Directorate General Taxation and Customs Union held in Brussels in October, 2015. The meeting dealt with with classification of an article consisting of shiny woven transparent fabric (100% polyester), with a machine embroidered decoration on it, presented on 300 cm long support rolls....The length of the fabric that is cut off the roll corresponds to the width of a future curtain. This fabric is converted into a curtain by simply cutting it at the edge of the densely woven selvedge to the required length of the curtain and by hemming this side and the two sides that had been cut off the roll. After consideration, the Committee had approved classification of the same under sub-heading 63039290 for the reasons reproduced as under:- Classification is determined by general rules 1, 2(a) and 6 for the interpretation o the combined nomen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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