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TMI Blog2000 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... andrel; that the extruded nets are mostly in roll form consisting of a length of 25 metres and can be put to various applications, such as a sieve or a screen, for decorative purposes, for covering a gutter hole; that the impugned products are used by Railways, manufacturer of fridges, in road making, in Green House, etc.; that however, for the purpose of fixing it on to window, further additional features are required like wooden frames, fixing and clamping mechanism, etc.; that they are clearing the goods in running length of 25 metres. The ld. Advocate, further, mentioned that the impugned goods were exempted from payment of duty under Tariff Item 15A(2) of the erstwhile Central Excise Tariff; that after introduction of New Tariff, these goods were classified under sub-heading 3922.90 and were exempted under Notification No. 132/86-C.E., dated 1-3-1986; that after amendment of Chapter 39 of the Tariff, the impugned goods were classified under sub-heading 3926.90 with effect from 10-2-1987 and were exempted under Notification Nos. 132/86, 53/86, etc.; that the Collector, Central Excise, under the impugned Order No. 5/94, dated 17-1-1994, has ordered that these products are 'Insec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be invoked; that it was held in this case that hollow tubular HDPE fabrics, cut into desired lengths, with no further operation carried out thereon, cannot be equated to make up textile articles'. Reliance was also placed on the decision in Hindustan Packaging Co. Ltd. v. CCE, Vadodara, 1995 (75) E.L.T. 313 (T-LB). He contended that when Heading speaks of Article, Rule 2(a) of the Interpretative Rules cannot be applied; that a basic material which can be put to various uses cannot be classified with reference to anyone of the end uses. 4.The ld Advocate, further, mentioned that the classification opinion of HSN specifically classifies the extruded nets under sub-heading 3926.90; that this cannot be brushed aside by merely saying that in European Countries, shutters and blinds are used extensively and the use of insect screen may not be in vogue; that Delhi High Court has held in Manisha Pharma Plasto Pvt. Ltd. v. U.O.I., 1999 (112) E.L.T. 22 (Del.) that "the opinion of the Harmonised Systems Committee has lot of weight and should ordinarily be taken as bindings"; that the Ministry of Industry has also recognised the impugned goods as extruded plastic meshes/nets as they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption fine in lieu of confiscation is imposable as there was no misdeclaration or suppression and they had not acted mala fidely. 5.Countering the arguments, Shri K. Srivastava, ld. SDR, submitted that the Collector has confirmed the demand of excise duty only in respect of insect screen and barriers and no duty has been charged on goods which were not builders' ware; that Collector has referred to the description of the impugned goods mentioned by the Appellants in the invoices issued by them; that they had mentioned the description of the goods in question as 'Insect Screen, Perifencing, VIP mesh, anti-bird net, shading net, CL fencing and duty has been demanded in respect of clearances of such goods. The ld. DR also produced some invoices in support of his contention and submitted that Rule 2(a) of the Interpretative Rules is attracted in the present matter as Chapter Note, description of Heading were not helpful in determining the classification of the impugned goods; that Insect screen/Interior screens and Fencing/ Similar Barriers possess the essential characteristics of the articles; that it is not necessary that screens should be fixed on the windows etc. with the help o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, purpose and use of the goods.' In this case, the Apex Court classified the plastic Chemical tanks and Vats under sub-heading 3925.10 applying Note 11 to Chapter 39 as the tanks were capable of being used for water storage. 6.The Ld. SDR also submitted that the decision in the case of Manisha Pharma Plasto, supra, is not applicable as in that case the Central Board of Excise Customs itself had referred the matter regarding correct classification of 'Prickly Heat' to the Customs Co-operative Council for its opinion and the Department itself was also classifying the said product as medicament; that in the present matter the complete background of the reference made to the Council is neither available nor known. The ld. SDR finally submitted that the demand is not hit by time-limit as the Appellants had never disclosed to the Department as to how the goods were accepted by the Trade or how they were describing the goods in the invoice; that only the process of manufacture was disclosed but how the goods were marketed by them was withheld from the Department and as such provisions of proviso to Section 11A(1) of the Central Excise Act are invocable. 7.In reply the ld. Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be put to various uses after cutting in different lengths etc. Further Rule 1 of Interpretative Rules clearly lays down that for legal purposes classification shall be determined according to the terms of the heading and any relative Section or Chapter Notes. Only in case heading or Notes do not otherwise require, classification shall be determined according to the provisions in the said Interpretative Rules. Thus Rules for Interpretation are applicable only when the classification of the product cannot be determined in accordance with Headings or Chapter/Section Notes. This was the view expressed by the Tribunal in Rajasthan Synthetic Industries Ltd., as well as Hindustan Packaging Co. cases. No doubt in both the cases Section/Chapter Notes were there to help in determining the classification. In this case also the extended Plastic mesh is classifiable under sub-heading 3926.90. The facts in K.W.H. Heliplastics Ltd., relied upon by ld. DR are completely different from the facts in present matter as the issue in the said case was about classification of tanks/vats which are specifically mentioned in sub-heading 3925.10 which are recognised as builders' ware as was evident from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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