2018 (9) TMI 892 - AT - Central Excise

Classification of goods - coated fusible interlining fabrics of cotton - Appellants had originally classified the impugned fabrics under Central Excise Tariff Heading (CETH) 5903 consequent to insertion of Note 2(c) in Chapter 59 of the Central Excise Tariff Act, 1985 (CETA) w.e.f. 01.03.1989. The said chapter note was omitted w.e.f. 16.03.1995, subsequent to which appellants sought reclassification of the impugned fabrics under CETH 5207. Whether the goods classified under Chapter 5903 as coated fabrics or in Chapter 52, based on the base textile material contained therein? Held that - There was no lack of clarity in the de-novo directions at the stage of adjudication. We are then unable to fathom how both the de novo adjudicating authority as well as the lower appellate authority have not bothered to re-examine the matter through the lens of Circular No.5/89 as per the specific direction given to them. On the contrary, these authorities appear to have reiterated the CBEC guidelines contained in CBEC Circular No.433/66/98-CX dt. 27.11.98 which had expounded that omission of Chapter Note 2(c) was neither intended to, nor resulted in, changing the classification of Fusible Interlining Cloth under CETH 5903; that classification of such fabrics may be considered as an exception under Chapter No.2(a) (iv) of Chapter 59 according to which fabrics partially coated or partially covered with plastics and bearing designs resulting from those treatments are excluded from the scope of CETA 5903. The retest reports clearly indicate that the samples of the impugned fabric have characteristics which would fall within the exclusions (i) to (v) of Chapter Note 2 (a) to CETH 59.03. So also, the requirement of impervious for the purpose of Board s telex circular 30.9.88 and Circular No.5/89 dt. 15.6.89 will not then be satisfied. Hence, even based on the output of the retest conducted by the CRCL, New Delhi as per Tribunal s direction it is clear that the impugned fabric will fall outside the scope of classifiability under CETA 5903. When Chapter Note 2 (c) itself is no longer in existence, and the impugned goods otherwise did not satisfy the requirements laid down in Chapter Note 2(a) read with CBEC circulars (supra), impugned goods will not get classified under CETH 59.03. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Classification of "coated fusible interlining fabrics of cotton" under the Central Excise Tariff Act (CETA).
2. Applicability and interpretation of Chapter Note 2(c) of Chapter 59 of CETA.
3. Validity and relevance of various CBEC circulars for classification.
4. Compliance with Tribunal's remand directions.
5. Results and implications of retesting the fabric samples.

Detailed Analysis:

1. Classification of "Coated Fusible Interlining Fabrics of Cotton" under CETA:
The primary issue revolves around whether the impugned fabrics should be classified under CETH 5903 or CETH 5207. The appellants initially classified these fabrics under CETH 5903 but sought reclassification under CETH 5207 after the deletion of Note 2(c) in Chapter 59.

2. Applicability and Interpretation of Chapter Note 2(c) of Chapter 59 of CETA:
Chapter Note 2(c) was introduced on 01.03.1989 and modified on 20.03.1990 to include "Textile fabrics, partially or discretely coated with plastic (heading NO.59.03)." This note was deleted on 16.03.1995. The appellants argued that post-deletion, the classification should revert to the pre-1989 interpretation, which did not include partially or discretely coated fabrics under CETH 5903.

3. Validity and Relevance of Various CBEC Circulars for Classification:
The appellants relied on several CBEC circulars, including Circular No.24/Coated Fabrics/88-CX.1 dated 02.09.1988 and Circular No.5/89 dated 15.06.1989, which clarified the classification criteria for coated fabrics. These circulars required the fabrics to have a continuous and adherent plastic layer, be impervious, and meet the conditions of Note 2 of Chapter 59. The deletion of Note 2(c) did not change the classification criteria according to Circular No.5/89.

4. Compliance with Tribunal's Remand Directions:
The Tribunal's remand order dated 16.09.1998 directed the adjudicating authority to retest the samples and consider Circular No.5/89 while deciding the classification. However, the de novo adjudicating authority and the lower appellate authority failed to adhere to these directions and instead followed the CBEC Circular No.433/66/98-CX dated 27.11.1998, which was later quashed by the High Court of Madras.

5. Results and Implications of Retesting the Fabric Samples:
The retesting conducted by the Central Revenue Control Laboratory (CRCL) revealed that the samples did not meet the criteria for classification under CETH 5903. The fabrics were not impervious to air and moisture and did not have a continuous plastic coating. The Tribunal noted that the retest reports indicated the fabrics fell within the exclusions of Chapter Note 2(a) to CETH 5903.

Conclusion:
The Tribunal found that the de novo adjudicating authority and the lower appellate authority failed to comply with the remand directions and improperly classified the fabrics under CETH 5903. The Tribunal concluded that the impugned fabrics should not be classified under CETH 5903 based on the retest results and the applicable CBEC circulars. Consequently, the impugned order was set aside, and the appeal was allowed with consequential benefits as per law.