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TMI Blog2022 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... se the essential character of being articles of base metal even when attached to the piece of cloth and in terms of HSN explanatory notes it is rightly classifiable under CTH 83081010. Apex Court, high Courts and this tribunal held in a plethora of cases that HSN and the explanatory notes have a persuasive effect. Also, the international classification becomes relevant to know the trade practice of classification and to know as to how the impugned product is known in the commercial or common man s parlance. The appellants have successfully demonstrated that the import documents describe the product to be Hooks and eye for the Brassieres; other importers are also claiming the classification under the same heading. Such overwhelming evidence cannot be overlooked - the impugned goods are rightly classifiable CTH 83081010. Appeal allowed - decided in favor of appellant. - CUSTOMS APPEAL No.40048 & 40049 of 2016 - FINAL ORDER No. 40051-40052 / 2022 - Dated:- 4-2-2022 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Rukmani Menon, Advocate For the Appellant Ms. K. Komathi, ADC (AR) For the Respondent ORDER The pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E METAL; BEADS AND SPANGLES, OF BASE METAL. 8308.10 - Hooks, eyes and eyelets. 83.08(A)- Hooks, eyes and eyelets, for clothing, footwear, awnings, tents or sails. She further submits that HSN says that articles referred to in (A), i.e., hooks, eyes and eyelets may also contain parts of leather, textiles, plastics wood, horn; bone, ebonite, mother of pearl, ivory, imitation precious stones, etc., provided they retain the essential character of articles of base metal; They may also be ornamented by working of the metal. Hence, it is clear from the reading of HSN that hooks and eyes of metal continue to remain classified under Heading 83.08 even if they contain certain tape of cloth which does not change the essential character of the items, which is nothing but articles of base metals. 5 . She further submits that Rule 3(a) of General Rules for Interpretation of First Schedule to Import Tariff says that (a). The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercial viability of the final product wherein such parts are used. She also submits that various manufacturers of clothing import the hooks and eye in this fashion only. 9 . Learned authorised representative for the Revenue, reiterates the findings of OIA and relies upon the Tribunal decision in the case of Gosai Trading (supra) 10 . Heard both sides and perused the records of the case. The brief issue for decision before us is the classification of the impugned goods ie hook and eye for brassieres, whether under CTH 83081010 as claimed by the appellant or under CTH 62129090 as part of brassieres as arrived at by the assessing officer and as upheld by the learned Commissioner (A) in the impugned order. The argument of the appellants is that the article needs to be classified, under CTH 83081010 being the most specific Heading, in terms of Rule 3(a) of General Rules of interpretation; HSN also supports this view and Tribunal, in M/s Ajay Kumar s case(supra) , involving identical facts, ruled that that the impugned goods are rightly classifiable under CTH 83081010. Per contra the learned authorised representative relies on the case of M/s Gosai Trading (supra); learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ----- The articles referred to in (A), (C) and (D) above may contain parts of leather, textiles, plastics, wood, horn, bone, mother of pearl, ivory, imitation precious stones etc provided they retain the essential character of articles of base metal. They may also be ornamented of working of the metal. The goods imported are covered in Chapter 8308 because the HSN Explanatory notes states that hooks and eyes stitched on fabric are covered in 8308 if they retain the essential character of articles of base metal. The hook and eye fastening strip is nothing but hooks and eyes stitched on fabric. The goods are used for the purpose of closing and opening, the fabric is incidental as the hooks and eyes needs to be stitched on the fabric in order to hold them and to be used. The hook and eye strip imported by the appellant retains the essential character of hooks and eyes. It does not take the form of any independent article to be classified as the part of Bra/Brassieres. The article referred in (A) (B) (C) (D) provided that they retain the essential character of the articles of base metal. 17. It is thus clear that if the eye and hook which is made of base metal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o laid down in Gosai Trading case (supra) these aspects have not been considered and accordingly we hold the same to be sub silentio and per incuriam. . . 19. The principle of sub silentio and per incuriam is decided by the Apex Court in case of Synthetic Chemicals v. State of UP reported in (1991) 4 SC 139. 20. In view of above, we are of the considered view that Ld. Tribunal in the case of Gosai Trading Company (supra) had not an occasion to examine the issue above the classification of the impugned goods 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 (supra) as per incuriam and respectfully disagree with the same. 21. We, therefore, hold that the classification of the hook and eye fastening strips, imported by the appellant will be rightly covered under Heading 8308 10 10. Accordingly, set aside the impugned order and allow the appeal. 14 . We find that tribunal, in the above case, has correctly analyzed the facts of the case and arrived at the conclusion in terms of relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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