TMI Blog2023 (7) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... ly held that woven fabric will be textile, irrespective of the method of weaving through any technique or material used in weaving, which may also be cotton, silk, rayon, nylon or of other description or made out of any other material. When such material is woven into fabric, what comes into existence is textile. As such, while in the matter of Raj Pack Well Ltd Vs. UOI the input material for HDPE sacks was derived from HDPE strips/tapes/sacks - In the present matter, it is a factum of same being woven which, inter alia qualifies to make it textile - like in the matter of M/s CTM Technical Textiles Ltd Vs. UOI the matter was remitted back to have a relook into the CBEC Circular No. 8/92 dated 24.09.1992 and CBEC and Trade Notice No. 78/94 dated 09.05.1994. While doing so the appellate authority shall consider the parameters laid down by the Hon ble Gujarat High Court in the aforesaid decision and also the relevant section notes and Chapter Notes relating to Chapter 39 as well as Section XI of schedule 1 of the Customs Tariff Act, 1975 as also the Chapter Notes relating to Chapter 54, 59, 60 and 63 to arrive at its decision, it shall also properly identify the product under dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they mentioned Flexible Intermediate Bulk Containers -HSN code 63053200 ...C.Ex. Tariff 39231090. Hence, it was observed that for central Excise purpose the respondent had declared HS code of the subject goods under Chapter 39 and for the Customs purpose they declared HS Code under Chapter 63. Since the goods appeared to be classifiable under Chapter 39 of Customs Tariff Act, 1975 a query was raised in the EDI system and the same was conveyed to the respondent. The samples of the goods were also drawn for visual inspection as well as for laboratory testing. The respondent had requested for provisional assessment of the shipping bills, hence the said 06 shipping bills were assessed provisionally and shipment of the consignments were allowed. The Assistant Commissioner of Customs, Custom House. Pipavav (here-in-after referred to as the Adjudicating Authority ) after considering the oral/written submission made by the Respondent, vide Order-in-Original No. 46/AC/GPPL/11-12 dated 02.02.2012 ordered that the goods exported by the Respondent declared as Flexible Intermediate Bulk Containers be classified under Tariff Heading 39232990. 2. Being aggrieved, the Respondent filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Adjudicating Authority and allowed the appeal filed by the respondent. 6. The department feeling aggrieved by the order of appellate authority has filed the present appeal on the basis of following grounds of appeal:- 6.1 That the Appellate Authority has decided the matter in favour of the respondent mainly on the grounds that Customs Tariff Act is having specific sub-heading No. 6305320 for the goods Flexible Intermediate Bulk Container. However, the Appellate Order has failed to take into consideration the fact that the respondent showed different classification for the same goods declared as Flexible Intermediate Bulk Container i.c.. for Central Excise purpose he showed Central Excise Tariff Sub-heading No. 39231090 whereas for customs purpose and for availing export benefits they showed under Customs Tariff Sub-Heading No. 6305320. Central Excise Tariff as well as Customs Tariff has been modeled on Harmonized System of Nomenclature (HSN) and First Schedule to Central Excise Tariff Act, 1985 also contains specific entry 63053200 for the goods namely Flexible Intermediate Bulk Container. But, the Appellate Authority has not made any effort to ascertain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.4 That the Adjudicating Authority has also relied upon Board's circular No. 42/2011-Cus dated 22.09.2011, wherein, it has been clarified that FIBC which are big or bulk bags or super sacks made of polymers of ethylene and other plastic material would be classifiable under Chapter 39 of the drawback schedule. Since tariff items and descriptions of goods in the drawback schedule have been aligned with the tariff and descriptions of goods in the First Schedule to the Customs tariff Act. 1975 at four digit level the clarification though issued in connection with the drawback matter, is quite relevant from the facts and circumstances of the present case. The Appellate Authority has not given any findings as to how the spirit of above clarification by Board is not applicable to the instant case, 6.5 That the Adjudicating Authority has relied upon Hon'ble High Court's judgment in the case of Raj Pack Well Ltd Vs. UOI (1990(50) (201) (MP) and Tribunal 's judgment in the case of Gujarat Raffia Industries Ltd Vs. CCE, Ahmedabad. The ratio of both these judgments appears to be squarely applicable in the present case. However, the Appellate Authority has not given any fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificial silk or other fibre shall be called textiles. The definition of fibre includes the regenerated cellulose, rayon, nylon and the like. Nowhere in the aforesaid definition of fibre or textiles plastic has been mentioned as a commodity to be included in the definition of fib e or textiles . Now in the Shree Radhe Industries case (supra) and the Shellya Industries case (supra) irrespective of the entries in the tariff as prevailing then, it has been held that the HDPE sacks are articles made of plastic; they are made of high density polyethylene which is a plastic raw material and it has further been held that they are not man-made filament yarn but are articles of plastic. The Circular of the Central Board of Direct Taxes dated 20-11-1985 also clearly says that the Board has decided that so long as the finished articles of plastic is made out of plastic material falling under Tariff Item No. 15A(i), even if at the intermediate stage articles classifiable under Item No. 15A(ii) if any tariff item emerges, the said product would be considered to have been produced out of the plastic material falling under Tariff Item No. 15A(i) and, therefore, the HDPE woven sacks should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of the HDPE tapes, the earlier judgments of the CEGAT approved by the Supreme Court and accepted by the Department, all clearly go to show that the HDPE bags are the bags woven by the plastic strips and they, therefore, are goods of plastic and the material used for weaving those bags being the strips of plastic made from plastic granules, the strips of plastic used for weaving the aforesaid HDPE woven sacks has to be classified as an Item under entry 39.20 of Chapter 39 and not under entry 54.06 of Chapter 54. Accordingly the entries of the finished goods have also to be made under the proper Chapter of the Tariff Act treating them as the finished goods made of plastic strips. 8. The learned Advocate took us through that the decision of Hon ble High Court of Gujarat relied upon by him specially para 52-58 and the direction of the Hon ble High Court of Gujarat contained in para 64. He also relied upon the decision in the matter of Porritts Spencer (Asia) Ltd Vs. State of Haryana as reported in 1983 (13) ELT 1607 (S.C) which was decided delivered under item 30 pertaining to textiles of schedule B to Punjab General Sales Tax Act, 1948 where the terms textile w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of M/s CTM Technical Textiles Ltd Vs. UOI in 2020 (12) TMI 1100- Gujarat High Court. That the decision in the matter of Raj Pack Well Ltd Vs. UOI-1990 (50) ELT (201) (M.P.) was delivered, considering, various Statutory Chapter Notes and Section Notes applicable to Chapter 39 as well as various Chapters relating to textile material including Chapter 54 of the Central Excise Tariff Act, 1985. He further emphasise that during the impugned period the party itself was clearly classifying item under Chapter 39 and therefore was taking the convenience based stand on the Customs side. He also pointed out that even the Hon ble Supreme Court has no where held in the matter of Porritts Spencer (Asia) Ltd Vs. State of Haryana, that the statutory definition if available, the same could be ignored in favour of the general meaning of terms textile . Further he pointed out that even the Hon ble Gujarat High Court had only remitted the matter back with certain directions to Union of India to have relook at the Ahmedabad Collectorate Trade Notice No. 78/94 dated 09.05.1994 and various other issues including that of discrimination to the assessee. 10. Considered, We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with rubber, or articles thereof, of Chapter 40; Chapter 59 2. Heading 5903 applies to: (a) textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre and whatever the nature of the plastic material (compact or cellular), other than: (1) fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually, Chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of colour; (2) products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15 and 30 C (usually, Chapter 39); (3) products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39); (4) fabrics partially coated or partially covered with plastics and bearing desig ..... 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