2005 (1) TMI 8 - AT - Central Excise

Manufacture - classification - Tarpaulin fabrics classified under heading 52.07 of CET and not under 59.06 - whether the conversion of tarpaulin fabric to made-ups would amount to manufacture for the purpose of levy of CE duty - SSI Exemption - Brand name

Issues Involved:

1. Classification of tarpaulin fabrics under the Central Excise Tariff Act, 1985.
2. Classification and excisability of tarpaulin made-ups.
3. Entitlement to SSI exemption benefit for tarpaulin made-ups.

Issue-wise Detailed Analysis:

1. Classification of Tarpaulin Fabrics:

The primary issue was the classification of tarpaulin fabrics manufactured by the assessees. The Tribunal's final order had classified the tarpaulin fabrics under Heading 59.06, which was contested by the assessees who argued for classification under Heading 52.07.

The Tribunal examined the manufacturing process and the nature of the product. The process involved dipping grey cotton canvas fabric into a solution of wax, aluminum stearate, and pigments, and then drying it. The key contention was whether the fabric had a visible layer of coating, which would determine its classification. According to Note 5(a) to Chapter 59, fabrics impregnated or coated must have a visible layer to be classified under Heading 59.06.

The Chemical Examiner's reports and cross-examinations were crucial. The reports indicated that the fabric was coated/impregnated, but no visible layer was formed. The Director (Revenue Laboratories) confirmed that the interstices between the yarns were not completely filled, and there was no visible layer.

The Tribunal referred to previous decisions, including the case of CCE & Cus., Aurangabad v. Ratan Tarpaulin Water Proof Industries, which classified similar products under Heading 52.07 due to the absence of a visible layer. Other cases cited included Binny Ltd v. Collector of Central Excise, Madras, and Ducksole (I) Ltd. v. CCE, Bangalore, which supported the classification under Heading 52.07.

The Tribunal concluded that the tarpaulin fabrics did not meet the criteria for classification under Heading 59.06 and should be classified under Heading 52.07. Therefore, the Revenue's appeals for classification under Heading 59.06 were rejected.

2. Classification and Excisability of Tarpaulin Made-ups:

The second issue was whether the process of converting tarpaulin fabric into tarpaulin made-ups (cutting, stitching, and adding eyelets) constituted "manufacture" under Section 2(f) of the Central Excise Act, making them excisable under Heading 63.01.

The Tribunal referred to the Andhra Pradesh High Court's decision in TRC No. 215/90 [State of Andhra Pradesh v. Binny Ltd.], which held that stitching and fitting eyelets did not change the essential character of the fabric. Therefore, the process did not amount to "manufacture."

The Tribunal also considered the Supreme Court's ruling in Moti Laminates Pvt. Ltd. v. CCE, Ahmedabad, which emphasized that goods must be produced or manufactured and capable of being marketed to be excisable.

Based on these precedents, the Tribunal held that the conversion of tarpaulin fabric into made-ups did not constitute "manufacture," and thus, the tarpaulin made-ups were not excisable. Consequently, the assessees' appeals challenging the demands of duty on tarpaulin made-ups were allowed.

3. Entitlement to SSI Exemption Benefit:

The third issue was the denial of SSI exemption benefit to M/s. Pondicherry Water Proofers for tarpaulin made-ups cleared under another person's trade mark ("calpaulin"). The Tribunal had already determined that tarpaulin made-ups were non-dutiable. Therefore, the question of SSI exemption benefit became irrelevant.

Conclusion:

All appeals of the Revenue were rejected, and all appeals of the assessees were allowed. The Tribunal pronounced the order in open court on 6-1-2005.

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