1990(06)LCX0036
BEFORE THE CEGAT, SPECIAL BENCH ‘D’, NEW DELHI
S/Shri G.P. Agarwal, Member (J) and P.C. Jain, Member (T)
MEHTA NETTINGS (P) LTD.
Versus
COLLECTOR OF C. EX.
Order No. E/352/90-D, dated 4-6-1990 in E/A. No. 1636/87-D
Cases Quoted
AHMEDABAD MANUEACTURING AND CALICO PRINTING CO. LTD. - ORDER NO. 469/89-D, DATED 20-10-1989 . [PARA 2]
PUNJAB UNIVERSITY v. VIJAY SINGH - AIR 1976 SC 1441 . .[PARA 2]
RAGHUBIR SINGH-AIR 1989 SC 1993 .. . [PARA 5]
ACCE v. DIPSI CHEMICALS PVT. LTD.-1987(09)LCX0044 Eq 1987 (032) ELT 0556 (BOM) [PARA 10.1]
Advocated By : Shri D.A. Dave, Advocate, for the Appellants.
Shrimati Vijay Zutshi, SDR, for the Respondents.
[Order per : P.C. Jain, Member (T)]. - Question involved in this appeal is the classification of Round Mesh Mosquito Netting Fabrics (RMMNF) under the CET for the purpose of assessment of central excise duty. The department has classified it under Tariff Heading 58.04 whereas the appellants urge Tariff Heading 52.06. Hence this appeal.
2. The learned advocate Shri D. Dave has urged that the Tribunal has already decided this question in the matter of M/s. Ahmedabad Manufacturing and Calico Printing Co. Ltd. (Calico Mills for short) vide its order No. 469/89-D dated 20-10-1989. He relies strongly on this decision and further urges that it is binding on the Tribunal in view of para 11 in AIR 1976 SC 1441.
2.1. Short ground taken by the department for discarding the submission of the appellants is that the said RMMNF has been manufactured on roller-locking machine and not on loom while Tariff Heading 52.06 specifically speaks of cotton fabric woven on looms other than handlooms. It, therefore, holds that Tariff Heading 58.04 is the appropriate classification for the said RMMNF.
3. For the sake of proper appreciation, both the Tariff Headings are reproduced below: -
“52.06 - Cotton fabrics (excluding fabrics covered under Heading Nos. 52.09,52.10 and 52.11)-
(a) Woven on looms other than handlooms, and
(b) Subjected to the process of bleaching, mercerising, dyeing, printing, water-proofing, shrink-proofing, organdie processing or any other process or any two or more of these processes with the aid of power or steam.
58.04 - Tulles and other net fabrics, not including woven, knitted or crocheted fabrics; lace in the piece, in strips or in motifs."
4. Learned advocate urges, on the authority of the Tribunal’s aforesaid decision in the matter of Calico Mills that in view of the Section Note 12(f) of Section XI of the CET and Rule 96 MMM of the Central Excise Rules, 1944, roller-locking machine has to be treated as a loom. Reliance has also been placed on I.S.I. No. 1431/1973 which describes RMMNF as woven fabric where weaving of RMMNF has been prescribed.
5. Learned SDR Smt. Vijay Zutshi reiterates the department’s arguments in the case of Calico Mills. With regard to the binding nature of the previous decision, she invites attention to the Supreme Court’s latest pronouncement in the case of Raghubir Singh (AIR 1989 SC 1993).
6. We have carefully considered the pleas advanced on both sides. We agree with the Ld. advocate Shri D. Dave that RMMNF is a woven fabric. It is not necessary that warp and weft yarns should be at right angles to characterise weaving. Nevertheless, it has to be noted that the scheme of textile classification under the new Central Excise Tariff has undergone a sea change vis-a-vis the textile classification under the old CET.
7. Tariff Heading 52.06 speaks of cotton fabrics “woven on looms other than handlooms”. Some other headings in this Chapter 52 simply refer to woven cotton fabric, for example 52.05, 52.09,52.10 and 52.11. Chapter 52, therefore, generally covers, inter alia, woven cotton fabric whether woven on handloom, other looms or other machines.
8. Scheme of Section XI comprising Chapters .50 to 63 of the CET reveals that chapters 50 to 55 broadly pertain to textile fibres. Yarns and woven fabrics of different fibres/filament - natural or man-made; Chapter 56 relates to non-woven fabrics and special yarn; Chapter 57 to carpets and other floor coverings; Chapter 58 to special woven fabrics, tufted textile fabrics, lace and embroidery; Chapter 59 to impregnated, coated, laminated fabrics; Chapter 60 to knitted or crocheted fabrics and Chapter 61 to 63 to articles of apparel and other made up textile articles.
9. The textile tariff scheme discloses that certain special woven fabrics irrespective of the nature of fibres have been placed in a separate Chapter. ‘Special woven fabrics’ have been specifically mentioned in Chapter 58. These fabrics which have been specifically mentioned in Chapter 58 of CET have to be classified accordingly on the well-settled legal principle that a specific provision of law would prevail over the general one. In view of the above scheme of the textile classification in Central Excise Tariff, ‘net fabric’ is to be classified under Tariff Heading 58.04, irrespective of the machine used for weaving such a fabric.
10. We, however, observe that the tariff entry 58.04 reads as:- “Tulles and other net fabrics not including woven, knitted or crocheted fabrics; lace in the piece, in strips or in motifs : In other words, the tariff entry 58.04 excludes, inter alia, woven fabric. This means, one may argue, that the ‘net fabric’ woven in the instant case would be outside the purview of entry 58.04. At first sight, there appears to be some conflict between entry 52.06 and entry 58.04. But having regard to the well-known legal principle of harmonious construction, the scope of the specific entry for ‘net-fabric’ should prevail over the general entries in Chapter 52 which covers all types of woven cotton fabrics. Thus, Tariff Heading 52.06 should be read as subject to Tariff Heading 58.04; otherwise the entry ‘Tulles and other net fabric’ in Tariff Heading 58.04 would go out of existence. Entries require interpretation in a manner that no entry becomes redundant or non-existent.
10.1. In view of the foregoing discussion, there does not appear to be any doubt that RMMNF would fall under Heading 58.04 as held by the lower authorities. Since the aforesaid facts have not been noticed or brought to the notice of the Tribunal’s Bench deciding the matter of Calico Mills, the-order No. 469/89-D dated 20-10-1989 in the said matter would not serve as a precedent in this case. For this proposition we rely on observations of Bombay High Court in ACCE v. Dipsi Chemicals Pvt. Ltd. [1987(09)LCX0044 Eq 1987 (032) ELT 0556 (Bom.)- Para 11] as follows:-
“In an exceptional case, whereas Division Bench of a Court gives a decision without noticing very important provisions of law which would have affected its decision.... a subsequent Division Bench may consider that the earlier decision is not binding upon it."
We are also of the view that Supreme Court’s latest pronouncement in AIR 1989 SC 1993 is more to the point.
10.2 Let us examine the two other arguments advanced by the learned advocate for the appellants. First one is that Roller Locking machine is the same as a powerloom on the basis of Rule 96 MMM in the Central Excise Rules, 1944. Now, Section E III of Chapter V from Rules 961 to 96 MMMMM is a special procedure of compounding the levy of central excise duty on cotton fabrics. Instead of charging the central excise duty on each consignment/lot of cotton fabrics removed from a factory manufacturing cotton fabrics, a rate per loom per quarter is fixed by the Central Government having regard to the average production of cotton fabric made on a powerloom. The purpose is to rid the small manufacturer of cotton fabrics, having no spinning and processing plants, of the rigours of the procedural law of central excise as well as to facilitate the department in not frittering away its energy on collection of small amounts of duty from small manufacturer, avoiding thereby unnecessary addition to cost of collection of duty. It is in the context of the scheme of compounded levy on cotton fabric that one powerloom has been equated with one roller-locking machine of one metre width for the purpose of quantum of production of fabric. There is no intention, nor can there be any to that effect, to say that roller locking machine is the same thing as powerloom.
10.3. Similarly the second argument, namely, Section Note 12(f) in Section XI does not decide the question of classification of the ‘net fabric’ - whether in Chapter 52 or in Chapter 58 - because that Section Note is applicable, inter alia, to both Chapter 52 and Chapter 58. Section XI of the Central Excise Tariff, as already mentioned, comprises Chapter 50 to 63.
11. In view of the foregoing discussion we reject the appeal.
Equivalent 1990 (50) ELT 316 (Tribunal)