TMI Blog2003 (1) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... d with LDPE on one side and then cut into required size. The sides of cut pieces are trimmed, stitched and eyelets of prices are also stitched and the plastic or metal eyelets are fixed at the required places. The tents or Tarpaulins are used for covering, securing and protecting goods, commodities etc. " 2.2 The learned Advocate, further, submitted that the Assistant Commissioner, under Order-in-Original No. 168/99 dated 8-4-1999 classified the impugned products under sub-heading 3926.90 holding that as the Tarpaulin was manufactured out of HDPE fabrics coated with LDPE, the basic raw material was an article of plastic and resultant product would also be an article of plastic; that Commissioner (Appeals) also, under the impugned Order rejected their Appeal holding that issue of classification of the product had already been settled in Commissioner of Central Excise, Ahmedabad v. Texel Plastic Ltd., 1998 (112) E.L.T. 286 (T) and Raj Pack Well Ltd. v. Union of India - 1990 (50) E.L.T. 201 (M.P.). 2.3 The learned Counsel contended that in the case of Texel Plastics, the rival sub-headings were 3920.38 and 3926.90 of the Central Excise Tariff; that Heading 63.06 was not at all con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further, submitted that for tarpaulin, Heading 63.06 is most specific Heading as 'tarpaulin' is specifically mentioned therein; that the word 'Tarpaulin' has not been qualified by using any restrictive word; that as per Rule 1 of the Rules for the Interpretation of the Tariff "the titles of Sections and Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the Heading and any relative Section or Chapter Notes...."; that accordingly tarpaulin of any material would fall under Heading 63.06. He also mentioned that it is a settled legal position that a specific Heading would prevail over a general Heading, that sub -heading 3926.90 under which Revenue wants to classify tarpaulins is very general as it is a residuary classification for articles of plastics. He also contended that the authorities below have failed to appreciate that the decisions relied upon by them were about classification of tapes and bags/sacks and there was no decision about classification of plastic fabrics; that flat yarn/tapes of HDPE produced by extruding process in the Appellant's factory are woven into fabrics, know as flat woven fabr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into existence from the stage of strip and before its conversion into sacks (bags); that the High Court has then held that "in the manufacture of the aforesaid tapes, sacks and fabric the material used is the plastic granules". He mentioned that the High Court has also referred to the decision of the Tribunal in the case of Shree Radhe Industries v. Collector of Customs and Central Excise - 1983 (12) E.L.T. 379 wherein it was held that "since the HDPE tapes are neither man made filament yarn nor cellulosic spun yarn, therefore, they do not fit into any category of Item 18 of the old Central Excise Tariff. H.D.P.E. is a well known plastic raw material, therefore, tapes made from the material would be covered as articles made of plastics. This decision of the CEGAT was taken to the Supreme Court by the Union of India, but the Appeal was dismissed on merits in C.A. No. 8369 of 83 dated 21-10-1983. The learned Senior Departmental Representative then submitted that the decision in Raj Pack Well case was rendered on the basis of decision confirmed by the Supreme Court. 5.2 He also contended that everything that is woven is not textile; that in the case of Porritts Spencer, the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TC 113 (SC). 6. We have considered the submissions of both the sides. The main contention of the Appellant is that the finished product Tarpaulin is made out of HDPE/plastic fabric and as such is classifiable under Heading 63.06 of the Tariff. They have heavily relied upon the decision of the Supreme Court in the case of Porritts Spencer (Asia) Ltd. wherein the Supreme Court has held that when yarn made out of any material is woven to a fabric, what comes into being is a textile. Their contention is that as the HDPE fabric is obtained by weaving, it is a textile and tarpaulin made out of it will be falling under Heading 63.06. It has also been contended by them that the decision of the M.P. High Court in Raj Pack Well Ltd. is not applicable as the High Court was considering the classification of HDPE strips and sacks made out of them and not of fabrics. We find ourselves unable to agree with this contention of the Appellant. Firstly the process of manufacture of tarpaulin as given by the Appellants is more or less similar to the process of manufacture of HDPE sacks as given in the Raj Pack Well decision. According to the Appellants HDPE granules are converted to flat yarn in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular looms is required under Textile (Control) Order, 1986. The High Court observed that "As such the woven sacks are not treated as an item of textile by the Commissioner of Textiles and the DGTD (Plastic and Polymer Directorates) has registered it as an Industry producing HDPE woven sacks. The raw material used for the production of HDPE strips is covered under Chapter 39 and in absence of anything on the record to show that the HDPE strips are synthetic textile material, the only fact that their width is less than 5 mm. would not automatically put that item under entry No. 54.06 ..... If the strip is a strip of plastic only and not a synthetic material and is also known in the common parlance as a commodity of plastic, and the finished goods that is the HDPE woven sacks are also known in the common parlance as plastic woven sacks, then it cannot be held that the strips with which such bags are woven are the strips of synthetic textile material." 7. As rightly pointed out by the learned Senior Departmental Representative the decision in the case of Porrits Spencer, the Supreme Court was considering the question as to whether "dryer felts" fall within the category of "all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven canvas. It, further, mentions that tarpaulin are generally made of coated or uncoated man made fibre, fabrics, or heavy to fairly heavy canvas (of hemp, jute, flax or cotton). It is thus apparent that Heading 63.06 covers tarpaulin which are made of man made fibre fabric of heavy canvas of hemp, jute, flax or cotton and as HDPE/Plastic strip yarn is not man made fabric, tarpaulin made of the said material would not fall under Heading 63.06. Further Heading 39.26 applies to articles of plastics and articles of other materials of Heading No. 39.01 to 39.14. No doubt Heading No. 39.26 is residuary Heading but it is residuary to Chapter 39 as all articles of plastics, which are not covered by earlier Headings, would fall under 39.26. As far as any article is made of plastic it will fall either in any one of the specific Headings in Chapter 39 and failing which under Heading 39.26. As the impugned products are made of plastic and are not mentioned specifically in any of the Headings of Chapter 39, they are appropriately classifiable under Heading 39.26. This is also evident from the Explanatory Notes of HSN below Heading 39.26 wherein it is mentioned that "this Heading covers articl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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