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TMI Blog2011 (3) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... re engaged in the manufacture of flock printed fabrics falling under Chapter 59 of the CETA, 1985. The department gathered intelligence to the effect that the assessee was using power in the flock printing of dyed fabrics, which is an excisable activity attracting excise duty liability. Accordingly, the jurisdictional Divisional Preventive Officers visited the premises of the assessee on 26-9-2001 and observed that the activity of flock printing was done with the aid of power operated machine. Accordingly, they booked a case against the assessee and issued a show-cause notice dated 22-3-2002 proposing to classify the goods under heading 5907.12 of the CETA and demanding a duty of Rs. 5,39,619/- for the fabrics cleared during the period from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wder, is an electro-statically sensitive powder of predominantly man made fibers. This powder is kept in a wooden frame screen and sprayed through the screen manually and gets stuck to the printed design made by the adhesive. The frame which drops the flock powder also has a small electric box capable of producing electrostatic charge. This frame with the electrostatic box is moved from one end of the fabrics to the other after the flock has been spread manually on the fabrics already printed with the adhesive, thereby attracting the superfluous and extra flock from the fabric bed. The static electric box does not take part in the actual printing process but it helps in collecting extra flock powder from the surface on the already printed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds come in to existence. In view of the above position, it is contended that the flock printing fabrics is rightly classifiable under Heading No. 5907.12 relating to "fabrics covered partially or fully with textile flocks or with the preparation containing textile flocks on base fabrics of man-made textile material" attracting a duty of 16% advalorem. On the other hand, the assessee claims that the item is classifiable under Heading No. 5907.30 - i.e. "fabrics in or in relation to the manufacture of which no process is orderly carried on with the aid of power" attracting nil rate of duty. 6. At the relevant time the tariff description of Heading No. 59.07 read as follows : "59.07 Textile fabrics otherwise impregnated, Coate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty exemption available to goods manufactured without the aid of power. In the case of Rajasthan State Chemical Works, power was used for the transfer of raw material to the reacting vessel in a preliminary operation as a part of a continuous process but for which the manufacture would have been impossible. The Hon'ble Apex Court held that the handling of the raw materials for the purpose of such transfer was integrally connected with the further operations which resulted in the emergence of manufactured goods and such operation is carried on with the aid of power, the process in or in relation to the manufacture must be deemed to be one carried on with the aid of power. 8. In the facts of the present case there is no doubt that electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores blocked with a special paint and the design to be printed on the fabric is etched on this painted fabrics so as to remove the paint from the pores of the nylon fabrics as per the desired design. Since the flock printed fabrics bears a design as per the requirements of the customers, they do not fall under Heading 59.07 of the CETA, as alleged in the show-cause notice and as proposed in the grounds of appeal by the department. The Ld. Counsel points out that as per the HSN explanatory note to Chapter 59 and particularly Heading No. 5907 (page 820) - "The heading does not cover patterned fabrics with a design produced by painting or coating (e.g. with textile dust -see Chapter Note 5) (generally Heading No. 5905 or Chapters 50 to 55, 58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds to be remitted back to the adjudicating authority for fresh consideration of the point now raised. As pointed out by the Ld. Counsel for the respondent assessee, this Tribunal in the case of Polycone Paper Ltd. v. CC, 1994 (70) E.L.T. 225 (Tri.) had held that "if the appeal involved the question of correct classification of goods on which a ruling would have to be given, it would not in the interest of justice or conducive to a proper disposal, if the appellants are prevented from raising the new ground". Accordingly, we remand the matter back to the adjudicating authority to examine the matter afresh with regard to the classification of the product taking into account the facts of the case and pass an appropriate order after giving an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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