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TMI Blog2018 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... o clubbing and availability of CENVAT Credit in view of classification under heading 59.11 do not affect the outcome of demand. Appeal dismissed - decided against Revenue. - Application No. E/MISC/92948 to 92950/2017, Appeal No. E/417/2008 - A/86078/2018 - Dated:- 9-3-2018 - MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) And SHRI RAJU, MEMBER (TECHNICAL) Shri H.M. Dixit, Asstt. Commissioner (AR) for Appellant Shri R.G. Sheth, Advocate for Respondent Per: Raju This appeal has been filed by the Revenue against order of Commissioner dropping the demand of Central Excise duty, interest and imposition of penalties. 2. Three miscellaneous applications have been filed by the legal representatives of the respondents M/s Jet Age, M/s Arya Textile M/s Chaitali Textile stating that M/s Jet Age was a proprietor firm owned by Mrs. Nayana J Shah, who has expired on 20.01.2016 due to natural cause and they enclosed the death certificate of the Mrs. Nayana J Shah. Similarly, proprietor of M/s Arya Textile and M/s Chaitali Textile, Mr. Bhupendra Shah was also expired on 09.05.2012, in support of his contention, death certificate is enclosed with the miscellaneous applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EC - 2006 (204) ELT 213 (Mad). The said circular prescribed as follows: - It further appears that as per Note 5(b) of Section XI of Central Excise Tariff Act, 1985, 1985 the fabric produced in finished state, ready for use (may be by merely needing separation by cutting dividing threats without sewing or other working), is only covered under Chapter 59 and as such even if at grey stage, if the fabric is at finished state and ready for use as Bolting Cloth or classifiable as Bolting Cloth only. The 100% Polyester and 100% Nylon fabrics manufactured by the said firms represent textile product in finished state in as much as it has all essential characteristics of Bolting Cloth and the same is sold by them without any processing. Therefore, it is not merely 'Grey Fabrics' but rightly qualifies as Bolting Cloth only. 3.2 Learned AR further pointed out that said Circular relates to cotton grey fabrics, cotton belting duck fabrics and it does not relate to bolting cloth. He relied on the grounds of appeal. In the grounds of appeal it has been argued that term 'bolting cloth' includes in itself a work 'cloth', which synonym of word 'fabric'. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad held that 5 firms came into existence prior to formation of BBCPL and cannot be considered as dummy of BBCPL. The impugned order placed reliance on the decision of Hon'ble Apex Court in the case of Modi Alkalies Chemicals Ltd - 2004 (171) ELT 155 (SC) to hold that unless pervasive financial and management control is shown, clubbing of clearance cannot be done. It holds that no such evidence has been produced in the notice, which shows common fund flow and common pooling of profit or common flow back of profits to the main entity and in absence of that, ground of clubbing the clearance cannot survive. In the grounds of appeal, it has been argued that M/s BBCPL was incorporated as Pvt. Ltd. company in 1985, however, prior to 1985, it existed as partnership firm in the name of Bombay Bolting Cloth for almost a decade. It has been argued that this has not been sated in the show-cause notice due to lack of old records and activities. It has also been argued that 5 firms registered under Excise operated from the same premises at Mumbai and Bilmoria in Gujarat. It has been argued that under Notification No. 8/2003, all tests are prescribed which reads as follows: - (i) Agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) bolting cloth; (iii) straining cloth of a kind used in oil presses or the like, of textile material or of human hair; (iv) flat woven textile fabrics with multiple warp or weft, whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes; (v) textile fabrics reinforced with metal, of a kind used for technical purposes; (vi) cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials; (b) textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes [for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts. It can be seen from the Chapter Note 7 that the heading 59.11 applies to textile product in pieces, cut to length or simply cut to rectangular (including square) shape length or to Textile articles. In the instant case, it is not disputed that the goods manufactured are in running length and thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so find that the impugned order relies on the decision of the Tribunal in the case of Simplex Mills Co. Ltd. -2005 (181) ELT 345 (SC), wherein the Hon'ble Apex Court has observed as follows: - 8. Non made up goods would, therefore, cover running length textiles, unprocessed in the manner specified in the Section Note. Sec n Note (SN)6 specifically provides that Chapters 52 to 55 would not apply to made up goods. It would logically follow that they would therefore apply to non-made up goods. According to SN-6 Chapters 56 to 60 unless the context so required would also not apply to made up goods and Chapters 50 to 55 would not apply to goods of Chapters 56 to 59. Chapter Note (CN)-6 of Chapter 59 clarifies 59.09 applies to specific goods as enumerated in paragraphs (a) and (b) thereof, which do not fall in any other heading of Section XI It follows that (l) unless the goods fall under paragraphs (a) or (b), they would not be covered by TH 59.09 and (2) that TH 59.09 is the residuary heading to cover all the enumerated goods provided they do not fall in any other heading of Section XI. Paragraph (a) of CN-6 deals with textile products in the piece, cut to length or simp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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