9911796707
TMI Blog2007 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... .06 and Rainwear manufactured out of such material is covered by Chapter 62 under Heading No. 62.01 while Revenue claims rainwear to be classified under Chapter Heading 4015.00. The authorities below relying on Chapter Note 2(a) of Chapter 62 held that Raincoat is an worn apparel and classifiable under Chapter Heading No. 4015.00. 2.1 The ld. Sr. Counsel Mr. Bagaria appearing for the Appellants submitted that the process of manufacture of rainwear requires raw materials such as: cotton fabrics, crumb rubber and sheet rubber which are natural rubber, synthetic rubber and few chemicals. Crumb rubber with other chemicals undergo processing for preparation of compound mixing and such mix is spread on fabrics. The fabric with a spread of mix is passed through rollers and thereby the mix gets properly and evenly coated on the fabric. The said processed fabric with a coat of the above mix is then cured which results in proper bonding between mix of rubber and chemicals with the cotton fabric and the fabrics get rubberised. The outcome so arrived is called rubberised textile fabrics. Such rubberised textile fabric is the basic raw material to make rainwear through the process of cuttin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00. Thus, the appellant manufacturing rainwear attracts that sub-heading. 2.4 Worn clothing or other worn articles are normally pre-manufactured goods and due to no utility thereof are discarded. Those are excluded by the Chapter Note 62 (a). Rainwear are manufactured excisable goods and dutiable by specific entry under sub-heading No. 62.01. If Revenue's contention that Chapter 2(a) of Chapter 62 is to be interpreted to cover the newly manufactured goods that shall defeat Legislative intent. According to the Appellant, meaning of the term "worn" not being defined by Central Excise Act, 1944 such term as commonly understood to admit already used and discarded clothes, shall be of good assistance to appreciate that worn out are not the goods meant for subsequent manufacture. According to Appellant, the Appellant finds support from HSN classification and the explanatory note to HSN does not support Revenue's contention. Relying on Customs Tariff 2002-2003, the Appellant submitted that old and used "worn" cloth does not attract Excise duty. The Customs Tariff Heading No. 62.09 further describing "worn" cloth and other "worn" article liable to import duty makes the position very cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r pillow and Air Mattress having been made out of Rubberised Textile Fabrics and as such textile fabric classifiable under Heading 59.05 by the authorities below, the proper classification of Air Pillow and Air Mattress were to be under the Heading 6301.00. 2.7 The ld. Counsel to support his argument relied on the judgment of Hon'ble Supreme Court in Commissioner of Central Excise, Madras v. MRF Ltd.- 1998 (97) E.L.T. 23 (S.C.). Heavily leaning on Para 4 of the judgment, he submitted that when the undisputed position in relation to raw material used for making rainwear was Rubberised Textile Fabric, classifying rainwear under sub heading 4015.00 is inconceivable for the reason that the goods covered by this sub-heading is made out of Vulcanised Rubber. For proper appreciation of the principle laid down by the Hon'ble Supreme Court, Para 4 of the above reported judgment in MRF case (supra) is reproduced below: -"It seems to us that no argument based on Chapter Note 3 or otherwise can be of any avail to the Revenue, having regard to the undisputed position that what is used as a raw material to produce the said product is classified by the Revenue itself as vulcanised rubber. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in the case of its rainwear manufactured, following Trimurti decision (supra). 3.3 The ld. Sr. Counsel relying on the judgment of Hon'ble Supreme Court in the case of CCE v. MRF Ltd., 1998 (97) E.L.T. 23 (S.C.) and on the judgment in the case of India Waterproofing and Dyeing Works - 1996 (87) E.L.T. 340 (S.C.) countered the argument of the ld. JDR. He submitted that the decision in Trimurti case was considered by this Tribunal in the assessee's own case reported in 2006 (203) E.L.T.80 and held that raincoats in the case of Trimurti were not argued to have been manufactured out of rubberised textile fabrics covered by SH 50.06 and the said decision was rendered sub silentio, having not considered, the provisions of the note of HSN classification in regard to the inputs under Chapter 62 which would be binding to arrive at a classification under the Central Excise Act. That decision did not consider the argument of Chapter 62 for which that shall not prevail in view of interpretations being given to the term "worn apparel" by Para 2 of the Judgment reported in 2006 (203) E.L.T.80. 3.4 He further submitted that in view of Apex Court judgment in Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Tribunal in various cases, he cited following decisions: (i) 1991 (4) 5CC 139 - State of UP v. Synthetics Chemicals Ltd. (ii) 1987 (27) E.L.T. 548 - CCE v. Surgichem . (iii) 1987 (30) E.L.T. 562 - Industrial Cables ( India ) Ltd. v. CC (iv) 1991 (55) E.L.T. 563 - Tata Engg. Locomotive Co. Ltd. v. CC (v) 1993 (63) E.L.T. 723 Hindustan Motors Ltd. v. CCE. (vi) 1988 (36) E.L.T. 106 ( Bombay High Court) - Sheel Thermoplastics Ltd. UOI. The Appellant also submitted that one additional or different fact make the world of differences and earlier decision cannot be followed if factually there are differences and if relevant provisions of law were also not considered. 4.1 Heard both sides and perused the record. 4.2 The real controversy is not relating to the raw material used in the rainwear and not disputed to be covered by sub-heading No. 59.06 under Chapter 59. But the dispute was whether any Rainwear (apparel or clothing) manufactured out of Rubberized Textile Fabric can be said to have been manufactured out of vulcanised rubber and classifiable under Heading 62.01 or Heading 4015. When the contents of raw material of Rainwear was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore a Bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by: any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub silentio. "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. - (1941) KB 675, 677: (1941) 2 All ER lithe Court did not feel bound by earlier decision as it was rendered without any argument, with out reference to the crucial words of the rule and without any citation of the authority. It was approved by this Court in Municipal Corporation of Delhi v. Guman Kaur - (1989) 1 SCC 101. The Bench held that, 'precedents sub silentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. The only point argued was on the question of the priority of the claimant's debt, and, on this argument being heard, the Court of Appeal granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in the subsequent case before the Court of Appeal- Lancaster Motor Co. v. Bremith Ltd., (1941) 1 KB 675 at 677 (C.A.) the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, with out reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. The rule that a precedent sub silentio is not authoritative goes back at least to 1661 - R. V. Warner (ward) 1 Keh. 661 Lev. 8 when counsel said: "An hundred pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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