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TMI Blog2024 (9) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... factured by the appellants were classifiable under CETH 3923 2990. The appellants pleaded that even if the product manufactured by them falls under Chapter 39, no duty is payable on goods which were supplied against H-Form; they are eligible for CENVAT credit and cum- duty benefit. Bags valued Rs.5,44,854/- were seized and proceedings were initiated. A Show Cause Notice dated 22.02.2017 was issued to the appellants seeking to confiscate the bags seized; demanding Central Excise Duty of Rs.81,728/- along with penalties and interest and proposing to impose penalty on Shri Sunil Sachdeva (Appeal No. E/60809/2019), Authorized Signatory of the appellant. On conclusion of the investigation, another Show Cause Notice, dated 24.08.2018, was issued to the appellants seeking to re-classify the goods manufactured by the appellants under CETH 3923 2990; demanding Central Excise Duty of Rs.4,84,89,409/- under proviso to Section 11A along with interest and penalties and proposing penalty on Shri Ravipal Sachdeva(Appeal No.E/60808/2019), Authorized Signatory of appellant. Both the Show Cause Notices were adjudicated by the impugned order dated 30.05.2019 vide which: * Bags seized of value Rs.5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of Chapter 54 supportsthe contention; plastic and plastic waste including PTE bottles falls under Chapter 39 whereas yarn manufactured out of this fall under Chapter 54/ 55. 4. Learned Counsel submits that the Adjudicating Authority denied the CENVAT credit of Rs.2,42,54,161/- for the reason that CENVAT credit can be taken only within one year of the issue of the invoice and that there was no provision to wave the limitation; the assertion was not correct in view of various judgments cited by the appellants to the effect that if the product is held liable to duty, benefit of CENVAT credit cannot be denied; the appellants have maintained records and regularly filed VAT Returns. Learned Counsel submits that though the appellant did not export directly, they exported the goods through merchant exporters against H- Form prescribed in CST Act, 1956; actual exports of the goods can be established from the VAT Returns and H-Forms and therefore, the benefit of export cannot be denied. Learned Counsel also submits that cum-duty benefit cannot be denied in view of the Hon'ble Supreme Court's decision in the case of Maruti Udyog Ltd. - 2002 (141) ELT 3 (SC). Learned Counsel submits the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X * Circular No. 648/39/2002-CS Dated 25.07.2002 * Formica India Division Vs. CCE-1995 (77) ELT 511 * CCE, Coimbatore Vs. CEGAT, Chennai-2008 (227) ELT 361 * CCE, Jalandhar Vs. Bhawani Weaving Factory-2010 (255) ELT 206 * Narmada Enterprises Vs. CCE, Bhopal-2013 (298) ELT 394 * Tata Iron and Steel Co. Ltd. Vs. CCE, Jamshedpur-2016 (344) ELT 994 * Blue Star Communications Final and others Vs. CCE,Ludhiana-Order No.A/60167-60171/2019 dated 22.02.2019 * CCE, Delhi Vs. Maruti Udyog Ltd.-2002 (141) ELT 3 * CCE, Madurai Vs. Vasu 2018 (361) ELT 167 Chemicals (Mad) * Uniworth Textiles Ltd. Vs. CCE, Raipur-2013 (288) ELT 161 * Pushpam Pharmaceuticals Company Vs. CCE, Bombay- 1995 (78) ELT 401 * CST Vs. Naresh Kumar & Company Pvt. Ltd.-2022 (67) GSTL 324 (Cal) * Astik Dyestuff Pvt. Ltd. VS. CCE & Customs-2014-TIOL- 237-HC- AHM-ST 7. Shri Pawan Kumar, learned Authorized Representative for the Department reiterates the findings of OIO and OIA. He takes us through the General Rules for Interpretation of the Harmonized System, relevant Section/ Chapter Notes under 39 & 63 and submits that the classification, under CETH 3923 (articles for conveyance or packing of goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices procured by the noticee of "HDPE/PP Fabric" were classified by respective suppliers under heading 3926. There is nothing on record that any textile material was being used by the noticee in the process of manufacture of HDPE/PP Fabric. The headings under which the notice seeks classification, that is 63053300 and 63059000, pertain to sacks of textile materials, whereas the tariff item 3923 29 90 specifically covers sacks and bags entirely made of other plastics. It becomes graphically clear that the HDPE/PP Bags and Sacks are bags and sacks made of other plastics and are specifically covered in the Tariff Item 39232990. 8. On going through the relevant entries, we find that the entry 3923 covers articles for conveyance or packing of goods; however, it is important to note that it does not talk about the process of manufacture of sacks; the impugned goods are manufactured by weaving; it is pertinent to note that HSN Explanatory Notes under Heading 3923 clarifies that the Heading excludes inter alia, household articles such as dustbins, and cups which are used as tableware or toilet articles and do not have the character of containers for the packing or conveyance of goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and woof pattern as is generally the case in most of the textiles, or it may be any other process of technique. There is such phenomenal advance in science and technology, so wondrous is the variety of fabrics manufactured from materials hitherto unknown or unthought of and so many are the new techniques invented for making fabric out of yarn that it would be most unwise to confine the weaving process to the warp and woof pattern. Whatever be the mode of weaving employed, woven fabric would be 'textiles'. What is necessary is no more than weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric. Moreover, a textile need not be of any particular size or strength or weight. It may be in small pieces or in big rolls; it may be weak or strong, light or, heavy, bleached or dyed, according to the requirement of the purchaser. The use to which it may be put is also immaterial and does not bear on its character as a textile. It may be used for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the body. A textile may ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n into fabric, what comes into existence is a "textile". 59. A specific and categorical submission was raised by the writ-applicants before the authorities that similarly situated manufacturers located elsewhere in the State as well as in the country have classified similar products as textiles, and the Central Excise officers have not initiated any proceedings against them on the basis that the goods are articles of plastics chargeable to excise duty. In the representations made before the Chief Commissioner, the Ministry of Finance and the Principal Chief Commissioner as well as the jurisdictional Commissioner, the writ-applicant has submitted as under:- "It may be noted sir that more than 100 manufacturers in the country are treating this product as a Textile material and following HSN code under chapter 60. We understand that we are the only company who have the Show cause Notice pending." 9. In view of the above, we find that the impugned bags and sacks having been manufactured by weaving material derived from HDPE/ PP strips merits classification under Heading 6305; therefore, we find that the argument put forth by the learned Counsel for the appellants is acceptable in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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