TMI Blog2019 (3) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... combed.” Commissioner has upheld the classification of the imported goods under heading 1404, by totally ignoring the chapter note 1 to Chapter 14. From the said Chapter Note, it is quite evident that “vegetable materials or fibres of vegetable materials of a kind used primarily in the manufacture of textiles”, get classified in Section XI. Commissioner (Appeal) has in his order not rendered any finding to this effect that the goods under importation were other than of a kind used primarily in the manufacture of textiles. It is quite evident that adjudicating authority has classified the goods considering them of a kind used primarily in the manufacture of textiles. Commissioner (Appeal) has not rendered any finding in this regards, but on the contrary held that goods are classifiable under heading 1404, after holding that “Kapok Fibres prepared for use as textile material are classifiable in heading 5305” - Thus Commissioner (Appeal) was required to render a finding in this regards whether the imported goods namely “Kapok” was of a kind used primarily in the manufacture of textiles - the order of Commissioner (Appeal) without rendering such a finding cannot be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kapok Prime No 1 (Raw Cotton) 5201 Kapok Super Fine Grade 1 (Raw Cotton) 5201 839012 14.09.2010 Kapok Prime No 1 (Raw Cotton) 5201 Kapok Super Fine Grade 1 (Raw Cotton) 5201 879495 15.10.2010 Kapok Prime No 1 (Raw Cotton) 5201 Kapok Super Fine Grade 1 (Raw Cotton) 5201 988733 19.12.2010 Kapok Prime No 1 Grade 1 (Java Cotton) 5201 Kapok Super Fine Grade 1 (Java Cotton) 5201 2.2 Since appraising officer at the time of appraisement, of B/E No 988733, entertained certain doubts about classification of imported goods he called for the literature by raising query on the system. The facts about fresh classification under chapter 53 were also explained to the appellants. 2.3 In response to the query raised on 20.12.2010, appellants responded on the system Please chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... causing a distinction between the two is not correct. Heading 5201 is wide enough to cover all varieties of cotton. Bombay High Court has in case Agarwal Co [1983 (12) ELT 116 (Bom)] held that Milk include milk powder also. e. They had made written submissions before the adjudicating authority which have not been considered. Also they had cleared the goods on payment of duty under protest to avoid demurrage charges. f. Commissioner (Appeal) stating that earlier Kapok cotton being classifiable under Chapter 14, will remain classifiable under same chapter will not be correct as heading 1402 was omitted in early 2007. After the said amendment Kapok cannot be classified under Chapter 14. g. Since the Kapok imported by them is not carded or combed or subjected to any other treatment, classification under heading 53 is ruled out. 4.1 We have heard Shri T Viswanathan, Advocate for the Appellants and Ms P Vinita Shekar, Additional Commissioner (Authorized Representative) for the Revenue. 4.2 Arguing for the appellants learned counsel while reiterating the submissions made in the appeal submitted- i. As far as heading 1404 is concerned there was no submission befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Authorized Representative, submitted i. In their reply to show cause notice at para 10 (page 36 of Appeal No C/446/12) appellants have submitted A perusal of the above description in HSN shows that the fibers obtained from vegetable material which, when raw or in other form fall under Chapter 4. (In particular Kapok is classified here only when they have given under term indicating their use as textile material) ii. In their Appeal Memo filed before Commissioner (Appeal) at para 4 (page 114 of the Appeal No C/446/12), the appellants had in detail, mentioned that the Kapok Cotton merits classification under Chapter 14. iii. Thus by making classification under Chapter 14, Commissioner (Appeal) has not made a new case which was not in the show cause notice, and the appellants had no opportunity to defend the case. Reliance is placed on a. Kirit Packing Industries (P) Ltd [1994 (71) ELT 369 (T)] b. Indian Petrochemicals Corporation Ltd [1984 (17) ELT 570 (T)] iv. On merits the order of Commissioner (Appeal) cannot be faulted as cotton under heading 5201 refers to plant of Genus Gossypium and not all plant of family Malvaceae . Cotton and Kapok are plant of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cotton 5201 COTTON, NOT CARDED OR COMBED 5201 00 - Cotton, not carded or combed : --- Indian cotton : 5201 00 11 ---- Bengal deshi 5201 00 12 ---- Indian cotton of staple lengths 20.5 mm (25/32 ) and below (e. g. oomras, yellow picking, Assam comillas) 5201 00 13 ---- Indian cotton of staple length exceeding 20.5mm (26/32 ) but not exceeding 24.5mm (30/32 ) 5201 00 14 ---- Indian cotton of staple length over 24.5 mm (31/32 ) to 28 mm 5201 00 15 ---- Indian cotton of staple length 28.5 mm (14/32 ) and above but below 34.5 mm 5201 00 19 ---- Indian cotton of all staple length 34.5 mm and above (112/32 ) 5201 00 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting materials; vegetable products not elsewhere specified or included NOTES : 1. This Chapter does not cover the following products which are to be classified in Section XI : vegetable materials or fibres of vegetable materials of a kind used primarily in the manufacture of textiles, however prepared, or other vegetable materials which have undergone treatment so as to render them suitable for use only as textile materials. 1401 VEGETABLE MATERIALS OF A KIND USED PRIMARILY FOR PLAITING (FOR EXAMPLE, BAMBOOS, RATTANS, REEDS, RUSHES, OSIER, RAFFIA, CLEANED, BLEACHED OR DYED CEREAL STRAW, AND LIME BARK) 1402 Omitted 1403 Omitted 1404 VEGETABLE PRODUCTS NOT ELSEWHERE SPECIFIED OR INCLUDED 5.5 Commissioner has upheld the classification of the imported goods under heading 1404, by totally ignoring the chapter note 1 to Chapter 14, reproduced above. From the said Chapter Note, it is quite evident that vegetable materials or fibres of vegetable materials of a kind used primarily in the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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