TMI Blog2019 (2) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... , then only the same would be classifiable under Chapter 63 and the aforesaid fact is absent in the instant case. Therefore, the impugned goods cannot be classified under Chapter 63 and shall be classifiable under Chapter 39. Also, the Respondent cannot be allowed to change the classification which they had pursued for last 9 years in view of the fact that they are now intended to avail lower tariff rate of GST, which is devoid of merit. CBIC, vide para 7 of the Circular 80/54/2018-GST dated 31-08-2018 has clarified that Polypropylene Leno Bags whether laminated with BOPP or not would be classified as plastic bags under HS code 3923 and would attract 18% GST. Thus, Polypropylene Leno Bags shall be classifiable under Heading No. 392390 of the Tariff Act. - Appeal Case No. 08/WBAAAR/Appeal/2018 - - - Dated:- 31-1-2019 - MR. A.P.S SURI, AND MS. SMARAKI MAHAPATRA, MEMBER An Appeal filed under Section 100(1) of the West Bengal Goods and Services Tax Act, 2017/ Central Goods and Services Tax Act, 2017, by the Assistant Commissioner of Central Tax, Howrah CGST CX Commissionerate. Present for the Appellant: Sri Dipankar Mukherjee, Superintendent (T R), Central Tax, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not legally tenable. (iii) The learned Advance Ruling Authority has failed to take note of the judgment delivered by the Hon ble Madhya Pradesh High Court in the case of M/s. Raj Pack Well Ltd Vs Union of India referred in 1990 (50) ELT 201 (M.P) = 1989 (9) TMI 120 - HIGH COURT OF MADHYA PRADESH AT INDORE where the Hon ble High Court has observed in Para 21 that in the result we hold that HDPE strips or tapes fall under the Head, 39.20, sub-heading 3920.32 of the Central Excise tariff Act and not under Head 54.06, sub-heading 5406.90. Similarly, the HDPE sacks fall into Heading 39.23, sub-heading 3923.90. Consequently, the petition filed by the petitioners is allowed. The order impugned passed by the Assistant Collector, Central Excise, Indore Division and that of the Collector (CE) Appeals, New Delhi are quashed. The respondents are directed to classify the goods accordingly. No other points pertaining to other issues were raised before us during the course of the arguments. There shall be no order as to costs. This order has not been superceded by any decision of any Hon ble High Court or the Hon ble apex Court. Hence the judgment delivered by the Advance Ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the Notification, i.e, by plain terms of exemption. 5. During the course of the hearing the Appellant reiterated the points as stated in Grounds in Appeal. The Appellant also referred to an order passed in appeal by this forum on 25.10.2018 in Appeal Case No. 06/WBAAAR/Appeal/2018 = 2018 (11) TMI 663 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL wherein PP Leno Bags of similar description, manufactured by M/S Mega Flex Plastics Ltd., were classified under Tariff Heading 3923 29 90. 6. During the course of the hearing the Respondent opposed the appeal and submitted the following: (i) The Respondent pointed out that Note 2(p) of Chapter 39 of the GST Tariff (Plastics and articles thereof) clearly excluded goods of Section XI (textile and textile products) thus textile products manufactured out of chapter 39 get excluded from the purview of Chapter 39 of the GST Tariff. (ii) The Respondent further submitted that Note 1 (g) to Section XI of the Tariff Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and cited the judgment of the Apex Court in the matter of Parle Agro (P) Ltd. Vs. Commissioner of Commercial taxes, Trivandrum reported in 2017 (352) ELT 113 (SC) = 2017 (5) TMI 592 - SUPREME COURT OF INDIA , in support of his submission. (vii) The Respondent admitted that earlier the Leno bags in question were being classified by them under Chapter 39 instead of Chapter 63 not for claiming any benefit but out of ignorance but that does not operate as estoppels/ res judicata against them for claiming classification under the correct tariff/ subheading of GST Tariff. In support of this submission the Respondent referred to following judgments/ orders namely; a. Commissioner of Central Excise, Bhopal Vs. Mahakoshal Potteries [2005 (183) ELT 289 (Tri-Dei)] = 2005 (2) TMI 183 - CESTAT, NEW DELHI b. Commissioner of Central Excise, Bhopal Vs. Perfect Refractories [2005 (185) ELT 163 (Tri-Dei)) = 2005 (2) TMI 597 - CESTAT, NEW DELHI c. Commissioner of Central Excise, Mumbai-Ill Vs. Nozzle Auto Association Pvt. Ltd. [2013 (290) ELT 731 (Tri-Mumbai)] = 2011 (8) TMI 756 - CESTAT, MUMBAI d. Commissioner of Customs, Central Excise Service Tax, Hyde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Polypropylene, Linear Low Density Polyethylene, Colour Master Batch, to manufacture Polypropylene Leno Bags. The Respondent using the aforesaid raw material, manufactured the extruded film which is again slitted to prepare strips. Such strips are used to manufacture Bags/ Sacks, by way of weaving the same. The moot point is that the Bags/ Sacks are not manufactured out of textile material as defined under Chapter Sub-Heading 6305 of the Tariff Act and is rather made of woven strips manufactured out of Polypropylene/ Linear Low Density Polyethylene (i.e., made of plastics) as defined under Chapter Sub-Heading 3923. Hence, the impugned goods are clearly classifiable under Chapter Sub-Heading 39232990. 9. It is pertinent to mention that the Note 2(p) of the Chapter 39 of GST Tariff (plastics and Articles thereof) does not cover the goods of Section XI (Textiles Textile Products). In the instant case, the impugned product, by no way of stretch of imagination, could be termed as Textiles or Textile Products. Therefore, unless the impugned goods have been manufactured from the material which qualifies as Textiles of the Chapter 63, it would not be proper to consider the same to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GST Tariff Act. The Respondent failed to bring out any submissions as to how the aforesaid references i.e., Bureau of Indian Standards and Technical Textile Unit are relevant to the Section Notes and Chapter Notes of the GST Tariff Act to determine the classification of the impugned goods. 12. A different Bench of this Appellate Forum passed an Order dated 25.10.2018 and classified the impugned Item under Tariff Heading 39232990 in the case of M/s. Mega Flex Plastics Ltd. In said case, the said party classifying the identical goods in two different Chapters 63 (for domestics) and 39 (for export) for last several years. The Appellate Authority for Advance Ruling observed that the said party tried to classify the Item under two different Tariff Headings to enjoy benefits both i.e., Drawback and lower Tariff rates for domestic clearance. The Appellate Authority for Advance Ruling held that the impugned goods shall be classifiable under Chapter 39. Now, in the instant case the Respondent has been classifying the impugned goods under Sub-Heading No. 3923.90 of the Central Excise Tariff for last 9 (nine) years and their present appeal has the only aim to enjoy lower tax rate of tax un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 39, the expression plastics means those materials of heading 39.01 to 39.14 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent of plasticizer) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. 7.4 Thus it is clarified that Polypropylene Woven and Non-Woven Bags and PP Woven and Non-Woven Bags laminated with BOPP would be classified as plastic bags under HS code 3923 and would attract 18% GST. From the above, it is evident that Polypropylene Leno Bags whether laminated with BOPP or not would be classified as plastic bags under HS code 3923 and would attract 18% GST. 14. In view of the above discussion we find that Polypropylene Leno Bags shall be classifiable under Heading No. 392390 of the Tariff Act. The Advance Ruling No. 19/WBAAR/2018-19 dated 28.09.2018 = 2018 (9) TMI 1770 - AUTHORITY FOR ADVANCE RULINGS, WEST BENGAL is modified to this effect and the Appeal stands disposed of accordingly. Send a copy of this order to the App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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