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TMI Blog2019 (1) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by the appraising groups on account of proper classification of the hook and eye fastening strip, imported by the appellant, which appear to have been mis-classified under the CTH 8308 10 10 in stead of appropriate classification under Tariff Heading 6212 90 90. After examination, it was held by the Assessing Officer that these goods i.e. hook and eye fastening strip are the parts of brassieres, containing of metallic hooks eyes strips made of cloth material. The imported goods (fastening strip containing hook and eye) were readymade component and meant for brassieres only. Accordingly, the Assessing Officer changed the classification of the imported consignment to heading No. 6212 90 90 instead of 8308 10 10 of Customs Tariff Heading, after following the process of adjudication. This adjudication order was upheld by the Ld. Commissioner (Appeal) in the impugned order. While upholding the order of Adjudicating Authority the ld. Commissioner (Appeal) referred to and relied upon the decision of M/s Gosai Trading Company vs. Commissioner of Customs, Kolkata-2007(214) ELT 301(Tri.-Kolkata) 3. Being aggrieved with the impugned order the appellant has filed the appeal on the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... --- Other 6212 90 10 --- Suspender belts, Braces, Suspender garters and the like 30% or Rs. 30 per piece whichever is higher 6212 90 90 --Other 30% or Rs. 30 per piece, whichever is higher (c) That HSN Explanatory Notes to chapter 62 read reproduce as under; "This chapter also covers unfinished or incomplete articles of the kind described therein, including shaped textile fabric for making such articles and shaped knitted or crocheted fabrics for making articles or parts of articles of heading 62.12. Provided these products have the essential character of the articles concerned, they are classified in the same heading as the finished articles. However parts of garments or of clothing accessories, not knitted or crocheted (other than those of heading 62.12.) are classified in heading 62.17. The HSN explanatory notes states that products that have the essential character of the articles concerned, they are classified in the same heading as the finished articles. The hook and eye fastening strip is merely strip of nylon material and wadding having the hooks and eyelets stitched on it. It is part of brassieres, but does not have the essential characteristic of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading. The tariff also has specific classification will not include "parts" of brassieres. The words "parts thereof" in the Heading 6212 refers to products that have the essential character of the articles concerned as per the HSN explanatory notes. for other goods of a sub-heading. "Parts" cannot be classified as "others" and vice versa. Since the Hooks and eye, imported by the appellant does not have essential characters of Brassieres and thus not classifiable under heading 6212 of Customs Tariff. To substantiate its claim about the classification under heading 8308 10 10, the appellant referred to HSN explanatory note which is reproduced as under; "The goods imported are covered in Chapter 8308 because the HSN Explanatory notes states that hooks and eyes stitched on fabric are covered in 8308 if they retain the essential character of articles of base metal. The hook and eye fastening strip is nothing but hooks and eyes stitched on fabric. The goods are used for the purpose of closing and opening, the fabric is incidental as the hooks and eyes need to be stitched on the fabric in order to be used. The hook and eye strip retains the essential character of hooks and eyes. It do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rassieres but also is being used as the part of gloves, shoes etc., as binding strips and also as other textile accessories meant for fastening by the strips. 9. Ld. Advocate also impressed upon the classification of the goods under heading 8308 10 10 drawing support from the classification determined by the EU Binding Information for United Kingdom as well as Portugal. Accordingly, she said the order of the Commissioner (Appeal) suffers very inherent infirmity as he has completely relied upon the decision of Gosai Trading Company (supra), without making any distinction in the case of article imported by the appellant and ignoring the HSN Explanatory Notes. 10. On the contrary ld. AR reiterated the reasons contained in the impugned order. He submitted that the issue has been settled by the Hon'ble Tribunal in case of M/s Gosai Trading Company(supra) and accordingly and same is required to be followed in this Case also. 11. Heard the parties and carefully considered the case records and various submissions made by both sides. 12. The issue involved in this case is regarding the classification of "hook and eye fastening strip" Nylon 60 imported by the appellant. As per the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng three hooks and the other part is again made from black cloth of the same material containing three eyes each in three rows. Moreover, though the impugned goods have been described in the invoice as Bra hook, these two parts are actually "hooks and eye tape for brassieres" consisting of metallic hooks and eye inserted in the cloth tap. These are readymade component made from cloth tape which can be stitched on to brassieres of the same and similar colour. Secondly, the eyes are placed in three rows spaced apart to enable extension or shortening the brassier length. The cloth portion also ensures that the metallic hooks and eyes do not come in contact with the body of the person wearing the brassieres and cause discomfort. Thus the cloth tape is not merely incidental but has functional uses. For these reasons, it is not possible to classify the hooks and eye tape imported by the appellants as metallic hooks and eyes for clothing under Heading 8308. These are more appropriately classifiable as parts of brassieres under Heading 6212 as these can be readily stitched to adjacent part of brassieres to manufacture a complete brassier." 14. In the case of Gosai Trading Company(supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hook and eye strip imported by the appellant retains the essential character of hooks and eyes. It does not take the form of any independent article to be classified as the part of Bra/ Brassieres. The article referred in (A) (B) (C) & (D) provided that they retain the essential character of the articles of base metal. 17. It is thus clear that if the eye and hook which is made of base metal with some part containing that of textile, plastic etc., would be classifiable under that heading, if it retains the character of hook and eye. The eye and hook retain their character even after being placed on the cloth plastic leather strip. The bra cannot be functional without hook and eye loop. It is manifestly clear that main function of the hook and eye is to fasten the bra and the strips are only used for holding them. In the Gosai Trader Case(supra) the man emphasis has been assigned to "cloth plastic strip" and "hook and bra" has been given only ancillary function, which to us, is highly mis-placed. In addition to above it has also been demonstrated that the imported item has another application as hand gloves, shoes etc. So the goods imported does not have exclusive use in brassi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio". The aforesaid principle has been followed by the Tribunal in the case of Collector of Central Excise vs. Surgichem reported in 1987 (27) E.L.T. 548 (Tribunal), also relied upon the relevant paragraph 5 is reproduced as under; "5.Mrs. J.K. Chander, the learned J.D.R. in reply to the arguments of the respondent states that the product manufactured by the respondent is Adhesive Tape and not Surgical Dressing. Tariff Advices issued by the Board or Collectorate are not binding on the Tribunal. She has further pleaded that the decisions of the Central Board of Excise and Customs has got only a persuasive value. She also argued that in J.L. Morison, Son and Jones (India) Ltd's case the Tribunal had come to the conclusion after going through the facts of the case and has given its detailed observations in Para No. 21 of its order. She has pleaded for the acceptance of the appeal. We have heard both the sides and have gone through the facts and circumstances of the case. For the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of the claimant's debt, and, on this argument being heard, the Court of Appeal granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in the subsequent case before the Court of Appeal (1), the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided" without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. The rule that a precedent sub silentio is not authoritative goes back at least to 1661 (m), when counsel said: "An hundred precedents sub silentio are not material"; and Twisden, J., agreed: "Precedents sub silentio and without argument are of no moment". In view of the above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular' point of law involved in the decision is not perceived by the Court or present to its- mind' (Salmond 12th Edition). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., [1941} IKB 675 the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation or Delhi v. Gumam Kaur, [1989] 1 SCC 101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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