TMI Blog2001 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Chapter 52 of the Central Excise Tariff Act and so not liable to duty. Department took up the stand that the goods manufactured are classifiable under Heading 59.09 or 59.11 of the Central Excise Tariff Act. Thereupon, show cause notices were issued demanding huge amounts by way of differential duty and penalties for violation of the provisions of the Central Excise Act, 1944 and the Rules framed thereunder. Manufacturers tried to substantiate their contention that the goods as cleared by them from their factory were classifiable under Chapter 52 of the Tariff Act only and that they are not classifiable under Heading 59.09. Since the goods are classifiable under Tariff heading 52.05, no duty was payable. This contention of the manufacturers was overruled by the orders impugned in these appeals. Hence, the matter is before this Tribunal. 3.At first, appeals preferred by M/s. Jyoti Overseas Ltd. came up before a Bench of two Members. The said Bench came across decisions of this Tribunal taking a view contrary to the one expressed by a coordinate Bench in Simplex Mills Co. v. Collector of Central Excise, Nagpur - 1993 (49) ECR 147. Since coordinate Benches took conflicting view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her group. Goods classifiable under Chapters 50 to 55 and 60 cannot be goods satisfying the description made up as stated in Note 5. Except where the context otherwise requires goods which are made up cannot fall under Chapters 56 to 59. Term "made up" has been defined by Note 5. They are : "(a) Cut otherwise than into squares or rectangles; (b) Produced in finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, table cloths, scarf squares, blankets); (c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unravelling by whipping or by other simple means; (d) Cut to size and having undergone a process of drawn thread work; (e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); (f) Knitted or crocheted to shape, whether presented as separate items or in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated by clause (b) to the Note. A textile product or a textile article cannot be textile fabric. Something made out of the fabric alone can be termed as textile product or textile article. Since no process has been undertaken by the appellants on the textile fabric manufactured by them, the goods manufactured cannot be termed as textile product or textile article. 9.Tariff Heading 59.11 reads : "Textile products and articles, for technical uses, specified in Note 7 to this Chapter." While understanding the scope and ambit of the various sub-headings falling under 59.11. Chapter Note 7 should play a vital role. De hors the activities contemplated by Note 7 to Chapter 59, no article can be classified under Heading 59.11. 10.Sub-heading 5911.10 has been pressed into service by the learned Departmental Representative to show that the textile fabric in question is to be classified under that sub-heading. For a proper understanding of that sub-heading, we quote the same : "Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal took the view that tarpaulin made from cotton fabrics continued to be classifiable as cotton fabric under item 19 of the then existing Central Excise Tariff Act. Same view was taken in Collector of Central Excise and Customs, Aurangabad v. Ratan Tarpaulin Water Proof Industries - 1999 (35) RLT 821 and Ducksole (I) Ltd. v. Commissioner of Central Excise, Bangalore - 2000 (125) E.L.T. 830. When tarpaulin, processed out of grey fabric has been classified under Chapter Heading 52.07, we fail to understand the logic adopted by the adjudicating authority in classifying the grey cotton fabric manufactured by the appellants as items falling under Heading 59.11. 13.Nowhere in the impugned orders the adjudicating authority came to the conclusion that the manufacturer carried out any processing activity on the fabrics and such processed fabrics were cleared by them. The goods cleared from their factory continued to be grey fabrics in running length. The products cleared were not made up either. Dealers, who got the fabrics from the appellants, subjected them to further processing and thereby used it as tarpaulin, bags, jeep hoods, tents, etc. Subsequent use to which it was put by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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