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TMI Blog2003 (12) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... merges out of the crimper is usually not properly crimped; that such tow would normally have one or more of the following defects, namely, uneven crimps, fused portion, flat tow, cut edge, etc.; that this initial length of the tow which is cut by the operator manually is termed as 'crimped uncut waste'; that it is further cut into small pieces of about 1 to 1½ metres length each for easy packing and to avoid further entanglement. 2.2 He, further, mentioned that this waste was classified by them in their classification list under sub-heading 5503.19 of the Tariff; that the sample of crimped uncut waste was drawn on 14-1-1987; that the Chemical Examiner submitted his Report on 20-3-1987 and their classification list was finally approved on 5-5-1987; that another sample was drawn on 6-5-1987 of which Report was given by the Chemical Examiner on 17-6-1987. 2.3 He mentioned that a show cause notice dated 21-7-1987 was issued to them alleging that PSF was cleared by them as waste and duty was demanded on all types of waste-undrawn waste, crimped uncut waste and cut and processed waste; that another show cause notice dated 3-1-1989 was issued alleging that crimped uncut waste cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned Order has not been passed in compliance to the directions given by the Tribunal; that moreover after the letter dated 21-12-1989, the Superintendent in letter dated 22-10-1990 specifically indicated that "Pursuant to your request made in your defence reply to the adjudicating authority the following samples have been sent by this office to the Chemical Examiner..... In this context, the Dy. Chief Chemist, Central Revenue Control Laboratories, New Delhi has made the following queries...."; that as per direction, they furnished answer to the queries under their letter dated 5-11-1990 and deposited the fees for retest; that they had also requested for another retest under their letter dated 5-12-1990 along with evidence for deposit of fees. The learned Advocate emphasized that all these facts were before the Tribunal and were specifically indicated in final Order dated 21-1-1994 and thus the impugned Order has been passed in defiance of the remand direction of the Tribunal and is liable to be set aside. 4.He also stated that Board's Circular dated 15-12-1989 clarifies that "drawing is essential before or during the filaments are crimped/texturised and then cut int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has, however, omitted to place reliance on the technical material relied upon by the Appellants which clearly shows that drawing and crimping are essential processes in the manufacture of the polysler staple fibre; that the world over the process of manufacture of polyster staple fibre is as undertaken by the Appellants and the generation of waste is inevitable; that without undertaking the process of crimping after drawing, the final product cannot be manufactured and it is during this process, the disputed waste has arisen, due to improper crimping; that such improperly crimped waste cannot be used as fibre or tow in the manufacture of final product. He relied upon the decision in the case of Swadeshi Polytex Ltd. v. CCE, Meerut, 1999 (109) E.L.T. 998 (T) wherein also the allegation was that the assessee had removed man-made fibres in the garb of waste clandestinely and the Tribunal observed that "The emergence of waste is a known phenomenon during the manufacture of synthetic filament and tow. The learned Commissioner, in his discussions observing that there is no definition of waste in the Tariff, held that waste was merely sub-standard fibre and, therefore, "it would remain f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not get the samples re-tested. 7.We have considered the submissions of both the sides. The Collector, in first Adjudication Order No. 1/91, dated 2-1-1991, after referring to Notes to Chapter 55 of the Central Excise Tariff, Explanatory Notes of H.S.N., report of the Chemical Examiner and other material came to the conclusion that the product removed as crimped and uncut waste was to be classified under sub-heading 5501.20 as Polyster Tow or staple fibre depending upon their length. The Appellate Tribunal, however, after hearing both the sides ordered, vide Final Order No. E/33 34/94-D, dated 21-1-1994, as under : "On a careful consideration of the submissions made, it is seen that the question of demand of duty on the goods will have to be remanded for the reasons argued before us by the learned Counsel as it appears from the record that the appellants had contested the report of the Chemical Examiner as per Rules and had given the grounds therefore. The Department had also apparently taken steps in this direction but whether there had been any retest of the samples or not is not on record which is relevant material to conclude this dispute and to which the appellants sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside." The Tribunal, therefore, second time set aside the Order and remanded the matter "to the adjudicating authority for fresh decision in accordance with the directions given by the Tribunal in the earlier remand Order dated 21-1-1994." 9.Unfortunately, the Commissioner again while passing the impugned Order in second de novo proceedings has not complied with the directions of the Tribunal given in Final Order dated 21-1-1994 and reiterated in Final Order dated 14-12-2000. The Commissioner in the present impugned Order also more or less repeated the findings as contained in the earlier two Adjudication Orders which stand set aside and remanded with specific directions. As the Revenue had not preferred any appeal against the earlier Orders passed by the Tribunal, the same have attained finality and the Commissioner is required to adjudicate the matter in de novo proceedings after complying with the directions of remand. The Commissioner has once again refused to follow the remand directions advancing the same reasons adopted by his predecessor in Adjudication Order dated 31-3-2000 that is (i) the request for retest was turned down and, (ii) IIT Test report is not acceptable be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple fibres virtually always are crimped deliberately during manufacture by a mechanical stuffing or gear crimping process.... The crimp enhances inter fibre friction which is necessary for the web so that it can sustain itself during the manufacturing process." The Board also vide Circular F. No. 55/11/89-CX. 1, dated 15-12-1989 considered the classification of Waste under Heading 55.03 of the Tariff and after referring to Notes to Chapter 55 and HSN Explanatory Notes, clarified that if fibres are not of uniform length it could be treated as waste of staple fibre and tow falling under Heading 55.03. It has also been mentioned in the said Circular that "drawing is essential before or during the filaments are crimped/texturised and then cut into staple fibres. During these processes waste may arise which are also covered under Central Excise Tariff Heading 55.03, Any fibre damaged during crimping/texturising or drawing could be a waste." (Emphasis supplied). The Commissioner has also not considered the said Circular though mentioned in the Remand Order of the Tribunal. Similarly the Commissioner has brushed aside the Report tendered by Shri V.B. Gupta, Professor IIT merely on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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