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TMI Blog2019 (1) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification of hook and eye more appropriately covered by 83 081010 by adopting the international classification also. The ld. Tribunal in the case of Gosai Trading Company [2007 (5) TMI 33 - CESTAT, KOLKATA] had not an occasion to examine the issue above the classification of the impugned good in detail considering the Section, Chapter and Heading entries vis-a-vis HSN Explanation and other Tariff clarification internationally decided. In view of that, we treat the ratio laid down in the Gosai Trading case as per incuriam and respectfully disagree with the same. The classification of the hook and eye fastening strips, imported by the appellant will be rightly covered under heading 8308 10 10 - appeal allowed - decided in favor of appellant. - Appeal No. C/53153/2018-(DB) - C/A/53507/2018-CU[DB] - Dated:- 12-10-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr Bijay Kumar, Member (Technical) Ms. Seema Jain, Adv. for the appellant Mr. Sunil Kumar, DR for the respondent ORDER Per Bijay Kumar 1. The present appeal is filed against the Order-in-Appeal No. CC-A-CUS-D-I-IMPORT-NCH-344-2018, dated 5/9/2018, passed by the Commissioner(Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of group of articles shall be taken to be a sub-classification of the immediately preceding description of the article or group of articles which has - . Where the description of an article or group of articles is preceded by --- or --- , the said article or group of articles shall be taken to be a sub-classification of the immediately preceding description of the article or group of articles which has - or - . It is, thus, submitted that the heading 6212 mentions that parts of Brassieres, girdles, corsets, braces, suspenders, garters and similar articles are classified in Chapter heading 6212. But heading 6212 does not prescribe the rate of duty payable. To ascertain the rate of duty on the goods, the goods have to be classified in the sub-heading against which the rate of duty has been prescribed in the CT Act. There is no sub-heading of parts in the heading 6212. The goods imported by the Appellant are not covered under Chapter heading 6212 90 90 because 6212 90 90 does not cover parts. Whereas parts are included, they are expressly mentioned in the Tariff and merit classification under specific Tariff heads. The sub-heading others in heading 6212 90 90 is preceded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that; 2(a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. Any reference in a heading to article will shall be taken to include a reference in an article incomplete for unfinished goods, provided that as presented, incomplete or unfinished article has essential character of complete and finished article. It shall also be taken to include reference to that article complete or unfinished, (falling to be classified has complete or finished goods) presented assemble or disassemble. Accordingly, it was submitted that an article which has essential character of brassieres would be included in Tariff heading 6212. The hook and eye fastening strip does not have essential character of brassieres, and therefore, will not be classified under heading 6212. 5. On the other hand chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal as the hooks and eyes need to be stitched on the fabric in order to be used. The hook and eye strip retains the essential character of hooks and eyes. It does not take the form of any article. 6. The appellant also stated that the Adjudicating Authority as well as appellate authority has relied upon the decision of the Hon ble Tribunal in case of Gosai Trading Company (Supra), for the classification of imported goods i.e. hooks and eye fastening strips as the part of brassieres. It is submitted that there is no finding in the order on the submission made by the appellant. In the Gosai Trading Company (supra) case the classification of hooks and eye fastening strips was decided by the Hon ble Tribunal without taking notice of the HSN Explanatory Note or the Rules for interpretation of the Tariff. The HSN Explanatory Note for the interpretation of Tariff was never argued before the Tribunal by the parties. It was submitted that the Explanatory Notes and the General Rule for interpretation of Tariff are in consonance with each other and following the same the Hooks and Eyes, imported by appellant should have been classifiable under Tariff heading 8308 10 10. It is settled l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious submissions made by both sides. 12. The issue involved in this case is regarding the classification of hook and eye fastening strip Nylon 60 imported by the appellant. As per the import invoices, the exporter is manufacturer also. The imported goods are of different colours, shapes and sizes. The exporter declared the classification of aforesaid exported goods under Customs Tariff Head. 83081010. Total invoices value of export goods as per CIF is U.S. dollar 206.00 FOR 900 doz which stood at ₹ 13623.96 after conversion. This classification was not acceptable to the Customs and after examination of the said imported goods, reclassification the goods as hooks and eye fastening strip of brassieres consisting of metallic hooks and eyes inserted in the strip made up of cloth. Accordingly, the accessing officer changed the classification of the imported goods under 6212 90 90 as the part of brassieres, placing the reliance on the Hon ble Cestat in the case of M/s Gosai Trading Company vs. Commissioner of Customs, Kolkata (supra) wherein it is held that the eye and hooks are the part of bra and classifiable under Chapter heading 6212 90 90. 13. We have also seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely classifiable as parts of brassieres under Heading 6212 as these can be readily stitched to adjacent part of brassieres to manufacture a complete brassier. 14. In the case of Gosai Trading Company(supra) the Hon ble Tribunal considered the fact that the eyes and hooks mentioned under heading 8308 comprised of the type which are used for the cloth and not brassieres. The Tribunal in that further held that Chapter 83 perhaps can also includes eyes and hooks of base metal if not fastened on strips of cloth which is used only in the brassieres and hence part of cloth type on which hooks and eyes are fastened is functional one as the same not only used for the extension/shortening of the bra but it also ensure that metallic hooks and eyes do not come in contact of the person, who wear the bra that so that there is no discomfort on the body part. The Hon ble Tribunal thus concluded that the hooks and eyes tape as part of the bra and concluded the classification under 6212, the Tribunal perhaps got more impressed with the functioning of tape required for functions of bra and thus overlooked the functionality of Hooks and eye treating the same to be incidental. 15. But this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given only ancillary function, which to us, is highly mis-placed. In addition to above it has also been demonstrated that the imported item has another application as hand gloves, shoes etc. So the goods imported does not have exclusive use in brassieres to be covered as part thereof. 18. We also find that Ld. Advocate has supplied the internet printout of classification of product (set of hook and eyes intended for use as a part of brassieres as determined by EU Binding Tariff Information which is reproduced as below; HS Code: 8308, 10,00,00 BTI Reference: GB109439269 Issuing country: UNITED KINGDOM Date of Issue: 30 Jul, 2002 Keywords: EYES, HOOKS, OF BASE METALS, ON A TEXTILE BASE Description: A SET OF HOOKS AND EYES INCORPORATED INTO A TEXTILE BACKING CONSISTS OF TWO RECTANGLES OF TWO TEXTILE LAYERS ONE HAS A SURFRACE INCORPORATING THREE PARALLEL ROWS OF THREE BASE METAL EYES. THE OTHER HAS A ROW OF THREE HOOKS INTENDED FOR USE AS PART OF BRASSIERES. Sources: EU Binding Information HS Code: 8308,10.00 BTI Reference: PT2004-000122 Issuing Country: PORTUGAL Date of Issue: 28 Dec. 2004 Keywords: RIBBON Des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (India) Ltd s case the Tribunal had come to the conclusion after going through the facts of the case and has given its detailed observations in Para No. 21 of its order. She has pleaded for the acceptance of the appeal. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper classification we feel that reproduction of Tariff Item 60 is very essential. Tariff Item No. Description of Goods Rate of duty 60 ADHESIVE TAPES, all sorts, not elsewhere specified, including cellulose adhesive tapes and paper backed adhesive tapes, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. 15% ad valorem A simple perusal of Tariff Item 60 shows that it relates to adhesive tapes. The product manufactured by respondent is adhesive plaster B.P.C. In common parlance it is surgical dressing. The learned Advocate had referred to the tariff advices issued by the Board and also a judgment of the Board in the case of M/s. Leukoplast India Pvt. Ltd. We are in full agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was decided without argument, without 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 (m), when counsel said: An hundred precedents sub silentio are not material ; and Twisden, J., agreed: Precedents sub silentio and without argument are of no moment . In view of the above discussion we are not inclined to follow the earlier judgment of the Tribunal in the case of J.L. Morison, Son and Jones Pvt. Ltd. Shri Sundar Rajan during the course of arguments had also argued that the revenue does not press its classification under Tariff Item 14E of the Central Excise Tariff and he leaves it to the Bench. The Adhesive Plastic B.P.C. Tape does not possess any medicinal or therapeutic properties. It is a surgical dressing in Pharmaceutical and commercial parlance. Accordingly we hold that the adhesive plastic B.P.C. manufactured by the respondents falls under Tariff Item 68. In the result the appeal filed by the revenue fails. 6. Sir Raymond Everssed in Wiliams v. Fawcett (1985) CA held that - as a general rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi v. Gumam Kaur, [1989] 1 SCC 101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decedendi. In Shama Rao v. State of Pondicherry , AIR 1967 SC 1680 it was ob- served, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.( A copy of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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