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TMI Blog2013 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... vers only waste of plastic. Further Chapter 39 does not apply to materials regarded as textile materials of Section XI and the Chapter 54 is also included under Section XI and hence product being textile waste is not classifiable under TH 3915 – Decision of C.C.E., Mumbai-V v. Nirlon Limited [2008 (7) TMI 677 - CESTAT, MUMBAI] applies here wherein revenue was not able to provide evidence regarding classification under sub-heading 3950.90. In U. O. I. v. Plastic Packaging Pvt. Ltd [1995(10)TMI 200 - S.C.]. no specific entry was provided for waste or scrap for the end product of the assessee falling under Tariff Heading 5404 therefore the Department was precluded to bring the waste in question under Tariff Heading 3915. Waste in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same on payment of duty @ 12% adv. instead of under tariff sub-heading 3915 90 50 and paying duty @16% adv. Against their claiming Lower Adjudicating Authority has classified the wastage of Nylon Monofilament yarn under Chapter sub-heading 3915 90 50 and confirmed the assessment of duty at the rate of 16% and interest and imposed penalty under Rule 25 of the Central Excise Rules, 2002. 3. Aggrieved by the Lower Adjudicating Authority s impugned order, the appellant had filed this appeal mainly on the following grounds : (a) that the Lower Adjudicating Authority (LAA) committed cross injustice and violation to the principle of natural justice by not considering many of their subtle legal contentions; (b) that the term pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore any liability to be fastened on them and the appellant relied on the decision of the Hon ble Bombay High Court reported in 1991 (51) E.L.T. 271; (g) that even as per the common parlance theory the waste in question are never regarded as plastic to be subjected to the duty of excise as proposed by the revenue; (h) that since waste in question were classifiable under Chapter 5401 upto the year 1994-1995 even when the Tariff entry Tariff Heading 3915 was existing, the proposal to classify the waste under Tariff Heading 3915 merely because the said entry got modified is not fair or justified; (i) that the LAA ought not to have rejected the explanatory noter appended to the Finance Bill, 1995 which was specifically brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the manufacture of laminated seats, which is not the question involved in the instant case; (o) that the LAA was also in total error in sustaining the larger period of time without any conscious or deliberative intention on the part of appellant; and (p) that further the demand proposed in the notice was for the differential duty on account of change in opinion involved in classification of the goods, which do not justified the sustaining the extended period of time. 4. PH was held on 25-5-2011, wherein Shri S. Janakiraman, Advocate appeared on behalf of the appellant at 12.15 hours. Shri M. Stanley, Superintendent, appeared from the Department side. During the hearing, the advocate submitted that this is an issue wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable under TSH 3915 90 50. The only reason adduced by the LAA to bring the waste of the appellant s products under TSH 3915 90 50 is on the basis of separate Tariff Heading available under 3915 - waste, paring and scrap of plastics. Whereas the appellant claims that as their final product is falling under Tariff Heading 5404, which heading was also accepted by the Department, the waste arising, if any, during the manufacture of the product would have to be classified under TH 5404 only. Besides, the appellant claims that in the market parlance their end product is not known as plastic, but however the Tariff Heading 3915 covers only waste of plastic. The appellant further contends that the Chapter 39 does not apply to materials reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act, 1944 . Whereas, as rightly contended by the appellant that the decision of Mumbai Tribunal in the case of M/s. Viral Laminates Ltd. v. C.C.E., Ahmedabad (supra), relied upon by the LAA, is not applicable to the issue on hand. Again, the decision of the Hon ble Bombay High Court in the case of Plastics Packing Pvt. Ltd. V. C.C.E., relied upon by the appellant, extends its helping hand. In the above case, the Hon ble High Court held that Item 15A deals with artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof. The waste is not included in Item 15A. It was only in the year 1982 that Item 15A was amended and Explanation III was added inter alia prescribing that the articles s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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