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TMI Blog2015 (8) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... er 39 clearly excludes FIBC of Heading 6305 from Chapter 3923. Parallelly HSN Explanatory Note 6305 3200 specifically includes description of FIBC. It is pertinent to state that prior to alignment of Tariff with the HSN Chapter 63 of CETH had only one sub heading i.e. 6301 till 1994-95. With effect from 2005 the Central Excise Tariff was aligned with HSN and the Chapter 63 expanded to include more sub headings from 6301 to 6310. - FIBC is rightly classifiable under 6305 3200 and not under 39232990 - Decied against Revenue. - E/76/2011,E/140/2012 & E/CO/7/2012,E/146 to 150/2012 & E/CO/17, 8 to 11/2012 - Final Order No. 40926-40932/2015 - Dated:- 3-8-2015 - Shri R. Periasami, Technical Member and Shri P. K. Choudhary, Judicial Member, JJ. For the Petitioner : Shri K.P. Muralidharan, AC (AR) For the Respondent : Shri A.K. Jayaraj, Advocate,Shri S. Venkatachalam, Advocate ORDER Per R. Periasami All the seven appeals filed by Revenue and six cross-objections filed by the respondents are taken up together as the issue involved in these appeals are common and related to classification of Flexible Intermediate Bulk Containers (FIBC) would fall under Chapter He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Rules classification of the product should be classified under Chapter 39. He submits that these are not textile made ups and not covered under Chapter 63. Even though there is a specific entry of FIBC under Chapter 63 by virtue of Section Note 1 of Section XI and Note 1 of Chapter 63 these products are not classifiable under Chapter 63 and rightly classified under Chapter 39. 6. On the other hand, learned counsels for the respondents reiterated the findings of the impugned order and submits that Commissioner (Appeals) has correctly classified the products under 6305 4200. They drew our attention to the HSN Explanatory Notes for both Chapter 39 and Chapter 63. As per HSN Note for Chapter 39 which clearly excludes articles of FIBC falling under 6305 correspondingly HSN Explanatory Note 63 specifically includes FIBC under 6305. They also relied on DGFT Minutes dated 25.7.2013 (at page 75 of paper book) where the issue of classification of export product FIBC had been considered by taking into the opinion given by Department of Chemicals and Petrochemicals, Directorate of Textile Commissioner and Department of Industries and decided that FIBC are covered under ITC (HS) 63 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal dated 13.8.2010 in the case of Karur KCP Packagings Pvt. Ltd. where the adjudicating authority in his order has classified the PP bags, FIBC under 39232900 and also ordered that all the goods exported and which were classified under 6305 from 17.4.2009 and 15.3.2010 shall be reclassified under Chapter 39. Therefore, this shows that that the classification had arisen for export goods not related to demand of central excise or rate of duty. In some cases lower authorities confirmed classification of FIBC under Chapter 6305 and Revenue preferred appeal against the Order-in-Original for classifying under 3920 and in other cases the Commissioner (Appeals) dismissed the Revenues appeals which have led to the present appeals by Revenue. 9. On perusal of the impugned orders, we find that Commissioner (Appeals) in the case of M/s. Karur KCP Packaging Pvt. Ltd. has dealt the issue in detail at paragraphs 4.1, 4.2, 4.3 and 4.4. Paragraph 4.1 is reproduced below:- I have carefully gone through the appeal, oral / written submissions made by the appellants and also the provisions of law in the subject matter. The issues to be decided is whether the FIBC bags manufactured and export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of plastics and not articles of textiles. They also relied on the decision of the Hon ble High Court of Madhya Pradesh in the case of Raj Pack Well (supra). On perusal of the said High Court order, we find that the entire issue relates to HDPE strips and tapes for the period prior to 2005-06. Revenue also relied on Boards Circular dated 24.9.1992 which was issued prior to alignment of Central Excise Tariff and Customs tariff. The present appeals relate to the period 2008-09 and 2009-10 and during this period Central Excise Tariff has already been aligned with HSN and the above High Courts direction and Board Circular relied by Revenue are not applicable to the present case where Chapter 63 was expanded and fully aligned with HSN. Since the classification of FIBC is linked with the export benefit, it is relevant to see para 13 of the Board Circular dated 22.9.2011 which is reproduced as under:- There has been a dispute regarding classification of FIBC (Flexible intermediate bulk containers). It has been represented that the field formations are classifying the FIBCs under Chapter 39 whereas the FIBC finds a specific mention under tariff item 630502 of the drawback schedule an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble High Courts order is reproduced as under:- Apart from the above, the issue also has been decided by the Director General of Foreign Trade, Udyog Bhawan, classifying that Flexible Intermediate Bulk Containers are covered under ITC (HS) Code 63 and not under ITC (HS) Code 39. The Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi, in Circular No. 42/2011-Cus., dated 22-9-2011, F.No. 609/82/2011-DBK, also has settled the dispute regarding the classification of FIBC by bringing it under Chapter 63, therefore, this Court has no hesitation to allow the prayer made by the petitioner. 14. We also find that US International Trade Commission rulings dated 1.9.2011 for Tariff No. 6305 3200 10 for the classification of FIBC originated from Indonesia wherein the Commission has given ruling that FIBC is classifiable under 6305320010 of US (HTS). 15. Further, the HSN Explanatory Note of Chapter 39 clearly excludes FIBC of Heading 6305 from Chapter 3923. Parallelly HSN Explanatory Note 6305 3200 specifically includes description of FIBC. It is pertinent to state that prior to alignment of Tariff with the HSN Chapter 63 of CETH had only one s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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