9911796707
TMI Blog1991 (9) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... claim, and the appeal, the appellants have come upto the Tribunal in this appeal. 2. Among the grounds of appeal taken is that Polypropylene liner cloth is a closely woven fabric and it is used as separator (Processed Tool) to avoid sticking of different layers of rubber compound coated fabrics, while storing. The same fabric is used repeatedly till it is torn off into small pieces. It cannot bond to rubber compound under any normal processed conditions followed in tyre industry/rubber industry. This ground has been taken to counter the argument taken by the Assistant Collector that classification of the goods in question under Heading 59.16/17 is not permissible in terms of Explanatory Notes appearing at page 820 of the Customs Co-operation Council Nomenclature. It is also claimed that Polypropylene liner is a warp made up of multi-filament and definitely fits under Heading 59.16/17 and not under Chapter 51 as it refers to mono-filament. Reliance has been placed on a write-up of the suppliers in support of the appellants plea. The claim for assessment under Chapter 84 was not pressed. 3. The appellants further claim is that Polypropylene liner cloth falls under Heading 59.17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (iv) woven textile fabrics whether or not felted, impregnated or coated, of a kind commonly used in paper-making or other machinery tubular or endless with single or multiple warp and or weft or flat woven multiple warp and/or weft." Shri Haksar submitted that Collector (Appeals) had not considered the aspect of the use of liner cloth in calendering machine and had merely reproduced certain portions from the order of the Assistant Collector. He, therefore, submitted that It would be appropriate to remand the matter to the lower authorities for fresh consideration. 7. Arguing for the Department, Shri L.C. Chakrabarti, the learned SDR, submitted that in order to qualify for classification under Heading 59.16/17, which covers textile fabric and textile articles, of a kind commonly used in machinery or plant , (emphasis laid by him), it is necessary to examine whether the goods are of a kind commonly used in machinery or plant. He submitted that it did not appear from the write-up of the suppliers, relied upon by the appellants, that the goods were commonly used in machinery or plant. In fact, it appears from the grounds of appeal as well as from the write-up that liner cloth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited the judgment of the Tribunal in the case of Falcon Tyres Ltd., Mysore v. Collector of Central Excise, Mysore [1985 (21) E.L.T. 786] and the judgment of the Andhra Pradesh High Court in BMF Beltings, Ltd. v. Union of India [1990 (50) E.L.T. 10]. It was decided in the latter case that friction cloth was not an excisable commodity because of being an intermediate product with short shelf life. He submitted that liner cloth is not needed for manufacture of rubberized tyre cloth and therefore, the question of exemption from countervailing duty would not arise. 11. Replying, Shri Haksar once again highlighted the qualities of liner cloth as given in the supplier s write-up and reiterated that it was entitled to classification under Heading 59.16/17. He distinguished the cases cited by Shri Chakrabarti and submitted that rubberised friction cloth is not identical to liner cloth, and therefore, the judgments cited have no application to the facts of this case. 12. We have carefully considered the matter and perused the case records. Polypropylene Liner Cloth was imported in July, 1981 in running length in 30 bales measuring 8400 Metres of 160 cms. width. It was assessed under Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a kind commonly used in machinery or plant , it is necessary that such use should be demonstrated in order to fall under this Heading. It is significant that the requirement being of a kind commonly used in machinery or plant , it should have been possible for the appellants to explain how it is of a kind commonly used in calendering machine. All that the write-up says is that the liner cloth is suitable for separating two layers of rubber. If the material was used in calendering machine in the form of industrial fabrics, the supplier s write-up would have mentioned about it and, in the absence of any other authentic supporting evidence, we do not think that the claim can be accepted merely on the basis of what has been stated in a letter of the appellants. 15. As for the claim that countervailing duty was not leviable on Polypropylene Liner Cloth because it was not manufactured in India at the material time, a reference to Section 3 of the Customs Tariff Act, 1975 will make it clear that although such a condition does figure in the notification for the purpose of levy of such duty, even in the event of its not being fulfilled, countervailing duty is still leviable. We reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest rate. Thus, the Explanation leaves no doubt that even if the goods are not manufactured in India, the additional duty is to be levied at the rate applicable to the class or description of articles to which it belongs, and, in case there are several different rates, the duty is to be charged at the highest rate. 16. Sub-section (3) of Section 3 goes one step further and provides for levy of duty even on the raw materials, components and ingredients of the same nature as, or similar to those, used in the production or manufacture of such article. The Central Government has been empowered to frame rules for this purpose and, it is in exercise of this power that they have framed the Additional Duty Rules, 1976 and it is under Notification 356-Cus., dated 2-8-1976 that the fabrics containing more than 10 per cent by weight of Synthetic fibre or yarn are liable to additional duty equal to the excise duty leviable on synthetic fibre and yarn on their imports into India. 17. The appellants have stated that the subject goods were exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
