1992(07)LCX0044

BEFORE THE CEGAT, SPECIAL BENCH ‘D’, NEW DELHI

S/Shri K.S. Venkataramani, Member (T) and S.L. Peeran, Member (J)

TRIJAMA FILTERALL PVT. LTD.

Versus

COLLECTOR OF CUS.

Order No. C/315/92-D, dated 30-7-1992 in A. No. C/2663/89-D

Cases Quoted

COLLECTOR v. MODERN ROOFING LTD. - 1990 (45) ELT 174  [PARA 3]

SIMPLEX MILLS CO. v. COLLECTOR - TRIBUNAL ORDER NOS. 150-161/92-D
 DATED 28-2-1992 IN A. NOS. E/753-763/91-D & E/2082/91-D  [PARAS 5, 6]

Advocated By: Shri N. Ramanathan, Consultant, for the Appellants.

Smt. J.M.S. Sundaram, S.D.R., for the Respondents.

[Order per : S.L. Peeran, Member (J)]. - The appellants are aggrieved with the Order-in-Appeal passed by Collector of Customs (Appeals) Madras, rejecting the claim of appellant for classification of the imported item ‘Filter Aids and non-woven Filter Panels’ technically named SYNFASAN under heading 5911.10 of Customs Tariff Act, 1985. The Department instead has classified the item under heading 5603.30. The importer has paid the duty under protest and filed the refund claim. The Assistant Collector in the Order-in-Original has held that “The sub-heading 59.11, is to be considered with reference to Chapter Note 7 of Chapter 57. The sub-heading 59.11 is applicable to the textile products in the piece, cut to lengths or simply cut to rectangular (including square) shape. The imported goods are in rolls, which have specific shape. Hence, the claim is rejected as inadmissible.” The Collector (Appeals) the held that the item is not an article but in running length, and hence its classification would be more appropriate under Heading 56.03.

2. The appellant’s contention is that the item has been designed exclusively for technical use and the Department having accepted that the item cannot be put to any use other than technical in natural than in that event the classification is more appropriate under Heading 59.11. It is contended that the note 7 of Chapter 59 includes textile products in the piece as also those cut to particular sizes. Therefore, textile product are also included in Heading 59.11 by virtue of this note 7.

3. We have heard Shri N. Ramanathan, learned consultant for the appellant and Mrs. J.M.S. Sundaram, learned S.D.R., for the revenue. Shri Ramanathan relied on note 7(b) of Chapter 59 which reads

“(b) Textile articles (other than those of Heading Nos. 59.08 to 59.10) of a kind used for technical purposes [for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos cement), gaskets, washers, polishing discs and other machinery parts).”

Referring to this Note 7(b) Shri Ramanathan pointed out that the item being a Textile article used for technical purpose fitted in the example given in the bracket clearly suggested that textile fabric meant for technical purposes in length fell solely under this Heading 59.11. The explanatory note to H.S.N. at page 776 under Heading 56.03 clearly excluded non-woven fabric for technical use falling under Heading 59.11. The H.S.N. explanatory notes having persuasive value the explanation note given therein has to be accepted. He contended that functional character of product has to be taken into consideration for the purpose of classification and in this context relied on the ruling rendered in the case of C.C. v. Modern Roofings Ltd. reported in 1990 (45) ELT 174.

4. Smt. J.M.S. Sundaram, learned S.D.R. submitted that Chapte 59 is not appropriate and that the item falls more appropriately under Heading 56.03 of Customs Tariff Act, 1985.

5. We have considered the submissions made by both the sides and perused the records. A similar matter came up for consideration before this Bench before us in the case of M/s. Simplex Mills Co. v. Collector of Central Excise in A. Nos. E/753 to 763/91-D and E/2082/91-D and by order No. E/150 to 161/92-D dated 28-2-1992, the assessees claim for classification of their Industrial fabrics under Chapter 52 was negatived and the Department’s claim for classification under Chapter 5909.00 was upheld by applying the Chapter Note 6(b), [The note is identical to note 7(b) of Chapter 59 of Customs Tariff Act]. The Bench has held in para 29 and para 30 as follows:

“29. Therefore, it has to be seen as to whether the products in question falls within Chapters 56 to 59 and in more particular context Chapter 55 which, the {revenue is seeking to classify. As we have seen Chapter 52 is excluded for the product in question. We have to only see whether it fits in Chapter 59.

The note 1 of Chapter 59 reads as follows:

“Except where the context otherwise requires, for the purposes of this chapter the expression ‘textile fabrics’ apply only to woven fabrics of Chapters 50-to 55 and gauze (Heading No. 58.03), narrow woven fabrics (Heading No. 58.06) braids and ornamental trimmings in the piece, and the knitted or crocheted fabrics of Chapter 60.”

(Note 6 of Chapter 59.09 reads as follows:)

“6. Heading No. 59.09 applies to the following goods, which do not fall in any other heading of Section XI:

(a) Textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of Heading Nos. 59.07 and 59.08), the following only : -

(i) Textile fabrics, felt and felt-lined woven fabrics, coated, covered or laminated with rubber, leather or other material, of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes.

(ii) Bolting cloth;

(iii) Straining cloth of a kind used in oil presses or the like, of textile material or of human hair;

(iv) Flat woven textile fabric with multiple warp or weft, whether or not fleted impregnated or coated, of a kind used in machinery or for other technical purposes;

(v) Textile fabrics reinforced with metal of a kind used for technical purposes;

(vi) Cords, braids and the like, whether or not coated, impregnated or reinforced with metal, of a kind used in industry as packing or lubricating materials;

(b) Textile articles (other than those of Heading Nos. 59.07 and 59.08) of a kind used for technical purposes (For example, textile fabrics and feltes, endless or filled with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos-cement), gaskets, wablers, polishing discs and other machinery parts).”

The term textile fabrics’ is clarified in this chapter to mean only to woven fabrics of Chapters 50 to 55. The product in question is undoubtedly woven fabrics of multifold yarn.

The assessees contention is that Chapter 59 does not apply to running length of cotton fabrics but applies only to textile products in the piece, cut to length or simply cut to rectangular (including square) and of shapes. They also contend that only textile fabrics which is processed, impregnated fall within Chapter 59.

The corresponding note 6 of Chapter 59 in H.S.N. explanatory notes is note 7 and that of 59.09 of C.E.T. ‘85 is note 59.11. The Heading of 59.11 of H.S.N. explanatory notes reads:

“Textile products and Articles, for Technical uses, specified in Note 7 of this Chapter.”

The various headings and the accompanying notes under Heading 59.11 of H.S.N. explanatory note reads as follows

The textile products and articles of this heading present particular characteristics which identity them as being for use in various types of machinery, apparatus, equipment or instruments or as tools or part of tools. The heading includes, in particular, those textile articles which are excluded from other headings and directed to Heading 59.11 by any specific provision of the Nomenclature [for example Note 1(e) to Section XVI]. It should be noted however, that certain textile parts and accessories of the goods of Section XVII, such as safety seat belts, shaped motor car body linings and insulating panels (Heading 87.08) and carpets for motor cars (Chapter 57), are not classified in this heading.

(A) TEXTILE FABRICS AND OTHER TEXTILE PRODUCTS, FOR TECHNICAL USES IN THE PIECE CUT TO LENGTH OR SIMPLY CUT TO RECTANGULAR (INCLUDING SQUARE) SHAPE.

Provided they do not have the character of the products of Headings 59.08 to 59.10, these products are classified here (and not in any other heading of Section XI), whether in the piece, cut to length or simply cut to rectangular (including square) shape.

This group covers only the textile fabrics and others textile products as defined in Note 7(a) to the chapter and listed at (1) to (6) below.

“(1) Textile fabrics, felt and felt lined woven fabrics, coated, covered or laminated with rubber, leather or other material (e.g. plastics), of a kind used for card clothing, and similar fabrics of a kind used for other technical purposes.

(2) Bolting Cloths. These are porons fabrics (for example, with a gauze, leno or plain weave), geometrically accurate as to size and shape (usually square) of the meshes which must not be deformed by us. They are mainly used for sifting (e.g. flour, abrasive powders, pro-powdered plastics, cattle food) filtering or for screen printing. Bolting cloths are generally made of hard twisted undercharged milk yarn or of synthetic filament yarn. (underlined by us)

(3) Straining cloth (e.g. woven filter fabrics an needled filter fabrics), whether or not impregnated, of a kind used in oil presses or for similar filtering purposes (e.g. in sugar refineries or breweries) and for gas cleaning or similar technical applications in industrial dust collecting systems. The heading includes oil filtering cloth, certain thick heavy fabrics of wool or of other animal hair and certain unbleached fabrics of synthetic fibers (e.g. nylon) thinner than the foregoing but of a close weave and having a characteristic rigidity. It also includes similar  straining cloth of human hair. (underlined by us)

(4) Flat woven textile fabrics with multiple warp or weft whether or not felted, impregnated or coated, of a kind used in machinery or for other technical purposes.

(5) Textile fabrics, reinforced with metal of a kind used for technical purposes, the metal thread (bare metal, wire twisted or gimped with textile yearn etc.) may, for example, be incorporated during weaving (in particular as warp) or introduced between plies of the material. Felt reinforced with metal is, however, excluded (Heading 56.02).

(6) Cords, braids and the like of a kind used in industry as packing or lubricating materials, these are usually of square section, coated or impregnated with grease, graphite, talc etc. and sometimes reinforced with metal, Cords, etc. -not coated or impregnated, remain classified here provided they are clearly recognisable as products used in industry as packing or lubricating materials.

(B) TEXTILE ARTICLES OF A KIND USED FOR TECHNICAL PURPOSES.

All textile articles of a kind used for technical purposes (other than those of Headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI [See Note 7(b) to the chapter]; for example:

(1) Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sequing etc.) for example, straining cloths for oil presses made by assembly of several pieces of fabric, bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing.

(2) Textile fabrics and felts, endless or fitted with linking devices of a kind used in paper making or similar machines (for example, for pulp or asbestos-cement) (excluding machinery belts of Heading 59.10).

(3) Articles formed or linked monofilament yarn spirals: and having similar uses to the textile fabrics and felters of a kind used in paper making or similar machines referred to in (2) above.

(4) Gaskets and diaphragms for pumps, motors, etc. and washers (excluding those of Heading 84.84).

(5) Discs sleeves and pads for shoe polishing and other machines.

(6) Textile bags for oil presses.

(7) Cords cut to length, with knots, loops or metals or glass eyelets, for use on Jacquard or other looms.

(8) Loom pickets.

(9) Bags for vacum cleaners, filter bags for air filteration plant, oil filters for engines etc.”

The textile articles of this heading may incorporate accessories in other material provided the article remain essentially articles of textile.

Sub-heading Explanatory Note.

Sub-heading 5911.90

Articles formed of linked monofilament yarn spirals and having similar uses to the textile fabrics ind felts or a kind used in paper-making or similar machines fall in this sub-heading and not in sub-heading 5911.31 or 5911.32”

Note 6(b) of chapter 59 of C.E.T., 1985 is also indicative of “Textile articles of a kind used for technical purposes (for example, textile fabrics and felts, endless or filted fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).

This note 6(b) of Chapter 59 C.E.T. ’85 does not referred to cut pieces or to process or impregnated ones.

The Chapter Heading 59.09 reads :

30. The example of “article of a kind suitable for industrial use given are textile fabrics, combined with one or more layers of rubber, leather or other material,” and that there is “bolting cloth, endless felts of textile fabrics, straining cloth”. There is comma (,) after textile fabric and also after the words ‘other material’, and after each item ‘Bolting cloth’ and preceding ‘straining cloth.’ Therefore, it cannot be presumed that these terms ‘textile fabric,’ ‘bolting cloth’ ‘straining cloth’ should be in ‘cut piece’ and be in only ‘coated.’ A clear reading indicates that ‘Industrial fabric’ of various types like ‘bolting’ ‘filter cloth,’ ‘Duck’ ‘Canvas’ ‘Straining cloth’ are all varieties of Industrial fabrics and hence, even if they are not coated or cut as articles, they fall under Heading 59.09 of C.E.T., 1985. It is interesting to note that “Transmission or conveyor belts or belting, of textile material, whether or not reinforced with metal or other material ”come specifically under Heading 59.08 with 30% duty. As we have seen ‘belting’ is always in running length and even it can be without reinforcement or impregnation or coating. This heading appears to have escapted the notice of the adjudicating authorities. As the department has not raised demands under this heading, we are not expressing any opinion on it. However, Heading 59.09 has textile fabrics of ‘Industrial use’ also mentioned therein, therefore, the classification of the impugned goods under Tariff Heading 59.09 of C.E.T., 1985 is well founded and maintainable.

The products in question are not ‘cotton fabrics’ or ‘man made fabrics’ but they are admittedly special woven fabrics. Special woven fabrics fall under Chapter Heading 58 and more specifically under sub-heading 58.06 but as the goods are having ‘industrial use’ the classification under Heading 59.09 is appropriate."

6. The entries in both the Tariff Acts of Customs and Excise are pari materia and the headings also identically worded. In the circumstances, the ratio of the Simplex Mills Co. is to be applied to the facts of this case also. The importer has also argued and made out the same points as held in Simplex Mills Co. case. The contention of the learned consultant that note 7(b) of Chapter 59 refers also to textile fabrics of a kind used for technical purposes when they are endless also falling under Chapter 59 carries lot of force in the light of the ratio of the Simplex case referred to above. The note 7(b) of Chapter 59 need not necessarily include textile products in the piece, cut to lengths are simply cut to rectangular (including square) shape and also it need not be an article as has been held by the Collector (Appeals), in view of the example textile fabrics endless given in the bracket in note 7(b) of Chapter 59. We, therefore, allow the appeal by applying the ratio of the above noted case.

Equivalent 1992 (62) ELT 566 (Tribunal)