9911796707
TMI Blog2023 (2) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... AUTHORITY FOR ADVANCE RULINGS, WEST BENGAL] and decided the issue in favour of the revenue against the assessees by holding that the goods are classifiable under Chapter 39 of the Tariff Act being the plastic articles and the reasoning given by the aforesaid Appellate authorities though being subordinate authorities and not binding upon this Court but the same is found convincing - Petitioner has also failed to produce any judgment or order by any High Court or Supreme Court reversing the order of such Appellate authorities by taking a different view. Merely because no further appeal is provided for or against the impugned order of the Appellate Authority for Advance Ruling the scope of interference under the jurisdiction under Article 226 of the Constitution of India cannot be enlarged and the findings of the Appellate Authority cannot be substituted unless the same is without jurisdiction or there is violation of principle of natural justice or the order is patently contrary to any specific provision of law which factors for invoking constitutional writ jurisdiction of this Court are absent in the instant case - This Court in exercise of its jurisdiction under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff head of its same product under the Central Excise Tariff Act after introduction of the GST Act, 2017. Facts involve in brief in the instant case as appears from relevant records are as hereunder: Petitioner is a manufacturer of Polypropylene Leno Bags by weaving polypropylene strips (tapes). Polypropylene is a variety of plastic. The major raw material in manufacture of PP Leno Bags is plastic granules. Petitioner, before the introduction of the Goods and Services Tax Act, 2017, had voluntarily declared its finished product under the Chapter Heading 3923 29 90 of the Central Excise Tariff Act, 1985 and enjoyed the Duty Drawback. No cogent reason has been shown by the petitioner as to why and how the Tariff Heading of the same product having same composition and involving same process of manufacturing sought to be changed from classification 3923 29 90 to 6305 33 00 except that rate of tax on the same product under the same tariff heading is higher under newly GST regime. It appears from record that petitioner declared the aforesaid product in foreign market under the Tariff Heading 3923 29 90 and started to clear the same product in the domestic market under the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order of the Appellate Authority for Advance Ruling reversing the order of the Authority for Advance Ruling particularly Paragraph Nos. 7-12 of which are relevant are as follows: 7. The respondent submitted copies of the reports of test conducted by the Central Institute of Plastics Engineering Technology, Haldia, dated 15.03.2018, the Indian Institute of Packaging, Kolkata, dated 27.03.2018 and Indian Oil Corporation Ltd., Panipat dated 12.03.2018 on his samples of PP Woven Leno Bags. These test reports are based on samples provided by the respondent. It is also seen that in the reports of Central Institute of Plastics Engineering Technology and the Indian Institute of Packaging i.e. Test Reports dated 15.03.2018 and 17.03.2018, respectively, it is stated that the reports are not to be reproduced without written approval, and references are not considered as supporting evidence. 8. The matter is examined and arguments of Appellant and submissions made by the respondent are considered. 9. Polypropylene Leno Bags are manufactured by the respondent by weaving polypropylene strips (tapes). Polypropylene is a variety of plastic and it is a fact that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 06.07.2018 pronounced by the West Bengal Authority for Advance Ruling in the matter of M/s. Mega Flex Plastics Ltd., and order that the item Polypropylene Leno Bags (PP Leno Bags) manufactured by the respondent, be classified under Tariff Heading 3923 29 90. The appeal filed by the Assistant Commissioner, CGST CX, Division, Howrah Commissionerate thus succeeds and is allowed. Crux of the argument of the petitioner in support of its claim for changing the head of classification for the purpose of tariff rate for its product Polypropylene strips (tapes) is that though it is manufactured from plastics since it is less than 5mm in width as such it should be treated as textile product while the very same product manufactured having same composition and manufacturing of it involves same procedure was claimed by the petitioner for a long time as plastic products prior to introduction of GST regime of classification and never contended that the said classification was not correct. In support of its contention and claim of transfer of Tariff Head and challenging the impugned order of the Appellate Authority of the Advance Ruling petitioner relies on some reports of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he HDPE strips fall under the Chapter Heading 3920 subheading 3920.32 of the Central Excise Tariff Act and not under the Heading 6305 33 00. Similarly, HDPE sacks fall into the heading 39.23. Before introduction of the GST regime, the rate of Duty under the Tariff Heading 3923 29 90 and 6305 33 00 both were 12.5%. however, in present regime of GST the rate of tax under the Tariff Heading 3923 29 90 is 18 % and under the Tariff Heading 6305 33 00 it is 5% or 12% depending upon the sale value of the products whether exceed Rs.1000/- per piece or not. By Circular No. 80/54/2018-GST dated 31st December, 2018, the Board only clarified the classification of the Polypropylene Woven and Non-woven Bags under Chapter Heading 3923 as the finished goods which is manufactured from HDPE strips as raw materials. After discussing the relevant Chapters, it has also clarified that the said product has been classified under the HSN code 3923 which attracts 18% GST. The writ petitioners have not been able to demonstrate as to on what basis they are seeking change of the classification of its finished product after the introduction of GST and it appears that petitioner has no basis for the sud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, unless the impugned goods have been manufactured from the material which qualifies as Textiles under Chapter 63, it would not be proper to consider the same to be classified under Chapter 6305 33 00. Further, Section Note 1 (h) of Section XI of the Tariff Act, specifically excludes: woven, knitted or crocheted fabrics, felt or non-wovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of Chapter 39; According to the West Bengal Advance Ruling Authority while deciding the issue in favour of the writ petitioner, it failed to take note of the decision in the case of Raj Pack Well Limited Vs- Union of India, reported in 1990 (50) E.L.T. 201 (M.P.). The Appellate Authority of the West Bengal Advance Ruling, after considering the materials on record and after hearing the parties has rightly upheld the contention of the respondent department vide order dated 25.10.2018 and allowed the appeal by holding against the writ petitioner. Learned advocate appearing for the respondents opposing the writ petition has relied on several judgments with regard to the propositions of law which are as hereunder: (i) In the case of Raj Pack We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apters falling under Section XI as Textile and Textile articles by virtue of Note 1(h) of Section XI and consequently, the item polypropylene Non-woven bags is classifiable under HSN Code 3023 29 90 an taxable at 18%. (viii) In the case of Appropriate Authority and anr. Vs- Sudha Patil (Smt) and anr. Reported in 1998 (8) SCC 237 the Hon ble Supreme Court has held that merely because no appeal is provided for against the order of the Appropriate Authority, the Supervisory power of the High Court does not get enlarged nor can the High Court exercise an appellate power. (ix) In the case of Collector of Customs, Madras Vs- K. Ganga Setty reported in AIR 1963 Supreme Court 1319 the Hon ble Supreme Couurt has held that if there were two constructions which an entry could reasonable bear and one of which was in favour of revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretations favourable to the subject appeals to the Court as the better one to adopt. (x) In the case of Mauri Yeast India Pvt. Ltd. Vs- State of U.P. reported in 2008 (225) E.L.T 321 (SC) the Hon ble Supreme Court has held that different construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by the petitioner is not applicable in this case. And that in a taxing statute there is no room of any intendment and regard must be had to clear meaning of the words used therein and the matter should be governed only by its language. As decided in the case of Bharati Telecom Ltd.- Vs- Commissioner of Customs reported in 2001 (134) E.L.T 327 (SC). Moreover, a fiscal statute must be construed strictly. In this regard respondent relied upon the decision of the Hon ble Allahabad High Court on the case reported in 2019 (20) G.S.T.L 46 (All). Furthermore, the decision in the case of Parle Agro (P) Ltd. has been considered by the Appellate Authority of Advance Ruling in the case of RLJ Woven Sacks Pvt. Ltd. reported in 2019 (22) G.S.T.L 120 (App. A.A.R-GST wherein the Appellate Authority of Advance Ruling after considering the same has ruled in favour of the Revenue by holding that product is classifiable under Chapter heading 3923. (ii) The decision relied upon by the writ petitioners in the case of Westinghouse Saxby Farmer Ltd. Vs- Commissioner of Central Excise, Calcutta reported in 2021 (376) E.L.T 14 (SC) is not applicable in the present facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court in the case of Hewlett Packard India Sales Pvt. Ltd. Vs- Commissioner of Customs passed in Civil Appeal No. 5373 of 2019 relied upon by the petitioner is also not applicable in this case. In the referred case the Department sought to change the classification of the goods which classified earlier by the assessee of its own and there the Department failed to discharge their burden of proof to classify the goods differently. In the instant case, the fact is just reverse here the petitioner wants to change the classification of the goods without any reason whatsoever and contrary to the tariff Heading of the Fiscal Statute which clearly is in favour of the Department and supports the impugned order of West Bengal Appellate Authority of Advance Ruling. (v) The decision in the case of CTO, Anti Evasion, Circle III, Jaipur Vs- Prasoon Enterprise reported in 2019 (23) G.S.T.L 44 (SC) relied upon by the petitioner is not applicable in this case. In the referred case the issue was that the wire ropes were essential part of mobile crane and the same was specifically classified under entry 155 of Schedule IV of the Rajasthan VAT Act, 2003, which the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided for or against the impugned order of the Appellate Authority for Advance Ruling the scope of interference under the jurisdiction under Article 226 of the Constitution of India cannot be enlarged and the findings of the Appellate Authority cannot be substituted unless the same is without jurisdiction or there is violation of principle of natural justice or the order is patently contrary to any specific provision of law which factors for invoking constitutional writ jurisdiction of this Court are absent in the instant case. (ii) This Court in exercise of its jurisdiction under Article 226 of the Constitution of India is not inclined to allow the petitioner to change the classification of Tariff Heading to avail lower rate of Tariff under GST regime when admittedly the product of the petitioner is Polypropylene Leno Bags manufactured by weaving Polypropylene strips and the major raw material of which is plastic granules and admittedly before the introduction of GST regime, petitioner had been declaring the said product under the Chapter 3923 29 90 of the Central Excise Tariff Act, 1985, and enjoyed the Duty Drawback and never contended before the authority till the introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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