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TMI Blog2023 (6) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... LTC report also indicate that the fabric are coated with silver. Accordingly, the Department contended that once the fabric are not coated with plastics, whether it can be seen with naked eyes are not, is immaterial, and the goods cannot be classified under the Chapter Heading 5903 - there are merit in the argument of the Department. Chapter Note 2(a) of Heading 5903 applies to textile fabrics, impregnated, coated, covered or laminated with plastics. According to the Principle of Ejusdem generis, when a general word follows some specified words, then the general words will have the same meaning as that of the specified words. By applying this Principle of ejusm genris, the interpretion of the above Chapter Note is that the textile fabrics impregnated with plastic, coated with plastic, covered with plastic and laminated with plastic are covered under the Chapter Heading 5903. The end use of a product cannot necessarily be the determining factor for classification of the goods as held by the Hon ble Supreme Court in the case of Indian Aluminium Cables vs UOI [ 1985 (5) TMI 54 - SUPREME COURT] - the Department proposed to classify the goods under the CTH 5407 only on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on at Kolkata High Court, seeking orders to send the samples of the fabric for retest by the Textile Committee (RLTC) or Customs Research Laboratory (CRCL), Delhi or any other authorized laboratory. The Hon ble High Court of Calcutta disposed the Writ Petition by Order dated 10.02.2016 wherein the Hon ble High Court has passed the following order:- W. P. was disposed of by directing the goods, or samples drawn there from, to be tested by the Textiles Committee Laboratory. All expenses for such repeat test will be borne by the petitioner by a substantial pre-deposit equivalent. 5. The order was accepted by the Department and samples were drawn and sent for re-test to the Textiles Committee Laboratory (RLTC) on 18/4/2016. The report of the Textile Committee was received on 27/04/2016. The Report of RLTC confirmed that :- (a) The fabric is woven and coated (b) Coating can be seen with naked eye, without taking into consideration of any colour change. But, the nature of the coating cannot be ascertained. (c) The end use cannot be ascertained, as it is customer s choice. (d) It cannot be ascertained whether the coating is meant for water proofing or anti UV radiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the criteria as mentioned in Chapter Note 2 (a) of Chapter 5903 and also they do not fall under the exception clause (1) to (6) in general. (ii) The impugned goods imported by the Respondent are used in making umbrella panel and thereafter a Complete Umbrella in finished form. Thus, the imported goods, namely the non-texturised polyester lining fabric coated is nothing but the fabric usable in umbrella panel. (iii) Umbrella Cloth Panel Fabrics are specifically classified under CTH No. 54071014, 54071024, 54071034 or 54071044 based on different parameters. (iv) The HSN explanatory notes to Tariff heading 5903 under which the importer classified the goods explains that: This heading covers textile fabrics which have been impregnated, coated, covered or laminated with plastics (e.g. poly vinyl chloride). Such products are classified here whatever their weight per square meter and whatever the nature of the plastic component (compact or cellular). (i) That, in case of impregnated, coated or covered fabrics, the impregnation, coating or covering can be seen with the naked eye otherwise than by a resulting change in colour. Textile fabrics in which the impregnation canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the Commissioner has ignored the ultimate use of these fabrics. In trade circles, it is common knowledge that these goods are used for manufacturing of Umbrella Cloth Panel , which also gets corroborated by the statement of the CHA/CB and therefore the goods should be treated as such. Moreover, as per Explanatory notes to Chapter 59, it has been clarified that goods crease proof, moth proof, unshrinkable and water proof has to be classified under CTH 50 to 55. Umbrella cloth fabrics having all these conditions are appropriately classifiable under CTH 5407. 12. In view of the above, the Department filed the present Appeal with a request to set aside the Order-in-Original passed by the Commissioner and classify the goods under CTH54071094 chargeable to specific rate of Customs duty of 115 Per kg 13. Heard both sides and perused the documents available on record. 14. We find that the Commissioner has classified the goods under the CTH 5903 on the basis of Chapter Note 2 (a)(1) of Chapter 5903. For the sake of ready reference the Chapter Note is reproduced below: 2. Heading 5903 applies to: (a) textile fabrics, impregnated, coated, covered or laminated with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department has sought the classification of the impugned goods under the Chapter Heading 5407. The Department s classification of the goods under 5407 is on the ground that the fabrics are utilized mainly as Umbrella Cloth and there is a specific sub-heading under Chapter 5407 for Umbrella Clothes. In this regard, the Counsel for the Respondent argued that end use of a product cannot be the criteria for deciding classification of the goods. We agree with the argument of the Respondent that end use of a product cannot necessarily be the determining factor for classification of the goods as held by the Hon ble Supreme Court in the case of Indian Aluminium Cables vs UOI . For classification of the goods the nature of material used is a very relevant factor. 19. We find that Chapter 54 covers various types of fabrics. The details available in the Test Report received from RLTC or IIT, Delhi does not contain various other parameters required for classification of the product under a specific sub-heading in Chapter 54. The Department has proposed the classification of the goods under the Chapter Heading 54071014 as umbrella cloth cotton fabrics. The relevant sub-heading is reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 5903. We find that the Hon ble Supreme Court in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad reported as 1999 (113) E.L.T. 24 (S.C.), held that 2. .. In our opinion, the Tribunal was quite wrong in these circumstances in allowing the Appeal of the Excise authorities and classifying the mint tablets as items of confectionery under Head 17.04. The correct course for the Tribunal to have followed was to have dismissed the appeal of the Excise authorities making it clear that it was open to the Excise authorities to issue a fresh show cause notice to the appellant on the basis that the tablets were classifiable under Heading 17.04 as items of confectionery. This would have given the appellant the opportunity to place on record such material as was available to it to establish the contrary. It is impermissible for the Tribunal to consider a case that is laid for the first time in appeal because the stage for setting out the factual matrix is before the authorities below. 22. We also find that the above judgement of the Hon ble Supreme Court has been relied by the Co-ordinate Bench of the Tribunal in the case of Pepsico Holdings Pvt.Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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