2018 (3) TMI 176 - AT - Central Excise

Classification of goods - fabric based blinds for window covering - Department took the view that the fabric in question was impregnated with scotch gard, a chemical which surrounds each fibre of the fabric providing an irresistible shield against dust and sail apart from imparting a strain proof quality; that the chemical coating predominantly consists of synthetic polymer and hence the said blinds are required to be classified under CETH 39253000. Whether the fabric based blinds for window coverings have been impregnated or coated with plastic of Chapter 39, hence do not qualify for classification under CETA 6303 as other articles of textiles and would require to be classified under CETA 39253000? - benefit of N/N. 30/2004-CE. Held that - while all plastics are formed by polymerization, every polymer is not a plastic. True, all single fabric synthetic textiles are made from manmade fibres by joining monomers into polymers through polymerization. However, even though a synthetic fibre is a polymer, it is specifically classified under CET Heading 54 of the CETA and not as a plastic under Chapter 39. By the same analogy, every chemical brought about by polymerization cannot be considered as a plastic unless that is formed under external influence by moulding, casting, extruding, rolling or other process and result into shapes which are retained on the removal of the external influence. Discernibly, a chemical which may have a polymeric composition like the impugned scotchgard but which is capable of being poured, sprayed, coated, impregnated and does not have any specific retained shape surely then cannot come within the fold of plastics for the purposes of Chapter 39. The scotchgard which has been impregnated / coated onto the fabric of the blinds is a licensed product manufactured by 3M. A perusal of the website of 3M informs that the key ingredient of the said material earlier was PER FLOURO OCTANE SULFONIC ACID (PFOS). After some health concerns were raised in respect of PFOS, the key ingredient in scotchgard has been replaced by PERFLOURO BUTANE SULFONIC ACID (PFBS) with chemical formula C4HF9O3S, a chemical compound with a four carbon fluorocarbon chain and a sulfonic acid functional group. The impugned goods will be required to be considered only as a textile fabric / material, which has been coated with a chemical compound which is not predominant in nature and the fabric per se even after such impregnation will continue to be considered only as a textile fabric. This being so, the made up textile articles made out of such fabric and in particular, interior blinds will be correctly classifiable under CET Heading 6303 as contended by the assessee - the impugned goods will be eligible for duty exemption under Notification No. 30/2004-CE. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Classification of fabric-based blinds for window coverings.
2. Eligibility for duty exemption under Notification No. 30/2004-CE.

Issue-Wise Detailed Analysis:

1. Classification of Fabric-Based Blinds:
The primary issue was whether the fabric-based blinds for window coverings should be classified under CETA 6303 as "other articles of textiles" or under CETA 39253000 as "plastic articles."

Department's Argument:
- The department argued that the fabric was impregnated with Scotchgard, a chemical providing an anti-dust and anti-stain shield, which predominantly consists of synthetic polymer.
- Based on the Chemical Examiner's report, the fabric was coated with a polymeric composition on both sides, making it a plastic-coated fabric.
- Citing Chapter Note 1(h) of Chapter 39, the department contended that such fabrics should be excluded from Chapter 63 and classified under Chapter 39.

Assessee's Argument:
- The assessee claimed that Scotchgard is a chemical, not plastic, and thus the fabric cannot be classified as plastic-coated.
- They relied on the judgment in MAC Venetians Vs. Commissioner of Central Excise, Delhi, and argued that the specific heading under 6303 is more appropriate than the general, residuary heading under 3925.
- The assessee highlighted that the imported fabric was classified under Chapter 6303 for customs purposes and provided test reports indicating the fabric was knitted.

Tribunal's Findings:
- The Tribunal noted that while all plastics are formed by polymerization, not all polymers are plastics. Scotchgard, though having a polymeric composition, does not qualify as plastic.
- The Chemical Examiner's report indicated that the fabric was predominantly textile, with GSM values confirming its textile nature.
- The Tribunal concluded that Scotchgard is a chemical compound, not a plastic, and thus the fabric should not be classified under Chapter 39 or 5903 but under 6303 as a textile article.

2. Eligibility for Duty Exemption:
The secondary issue was whether the impugned goods are eligible for duty exemption under Notification No. 30/2004-CE.

Department's Argument:
- The department held that if the fabric is classified under Chapter 39, it would not be eligible for the said exemption.

Assessee's Argument:
- The assessee argued that the fabric, even if coated with Scotchgard, remains a textile product and thus should qualify for the exemption.

Tribunal's Findings:
- Since the Tribunal classified the fabric under Chapter 6303, it held that the impugned goods are eligible for duty exemption under Notification No. 30/2004-CE.

Conclusion:
- The appeals filed by the assessee (E/240/2010 and E/40528/2014) were allowed, setting aside the impugned orders and granting consequential relief.
- The department's appeals (E/40652/2013 and E/41723/2013) were rejected.
- The Tribunal found no grounds to interfere with the order directing the verification of CENVAT credit eligibility (E/40563/2014), and thus, this appeal was dismissed.