1993(12)LCX0040
BEFORE THE CEGAT, SPECIAL BENCH ‘D’, NEW DELHI
Shri S.K. Bhatnagar, Vice President and Ms. Jyoti Balasundaram, Member (J)
COLLECTOR OF CUSTOMS, MAD.
Versus
RATHI FILTERS AND INDUSTRIES (P) LTD.
Order No. C/455/93-D, dated 13-12-1993, passed in Appeal No. C/1785/91-D
Cases Quoted
Trijama Filterall Pvt. Ltd. v. Collector — 1992 (62) ELT 566 (Tribunal) .. [Paras 3, 6]
Simplex Mills Co. v. Collector — Order No. E/150-161/92-D, dated 28-2-1992. [Paras 4,6]
Advocated By : Shri J.N. Nair, JDR, for the Appellants.
S/Shri Krishna Srinivasan and P.K. Ram, Advocates, for the Respondents.
[Order per : Jyoti Balasundaram, Member (J)]. - The respondents herein filed Bills of Entry in February, 1991 for clearance of Needled Felt Woven Scrim for manufacture of Air Pollution Duct Filter Bags and claimed assessment of the goods under Heading 5911.40 of Customs Tariff Act, 1985. The adjudicating authority upheld classification under Heading 5602.90 relying upon the test report describing the goods as sheets composed of layers of scrim (woven fabric) made of yarn of non-cellulosic origin (Polyester) Sandwiched by felt composed of fibres of non-cellulosic origin with non-adhesive coating material, and as non-woven textile fabric, finding use as filter media. The lower appellate authority reversed the order of the Assistant Collector relying upon his earlier order, and accepted the importer’s contention that the goods are assessable under Heading 59.11 of Customs Tariff Act, 1975. Hence this appeal by the Revenue.
2. We have heard Shri J.N. Nair, learned DR and Shri Krishna Srinivasan, learned Counsel and carefully considered their submissions.
3. The imported goods are non-woven filter media in the form of needled filter fabric in running length for manufacture of filter bags. The Department relies upon the H.S.N. Explanatory Notes (at page 776) on “Non-Wovens for Technical Use” to rule out classification of the imported goods which are supplied in running length under Heading 59.11 as, according to them, goods which are cut to size, assembled by sewing etc., alone are covered by this Heading, while the goods in question being raw materials in running length in the form of needled filter fabric which require further stitching to become filter bags, are correctly classifiable under Heading 5602.10. We find that this contention has been negatived by the Tribunal in the case of Trijama Filterall Pvt. Ltd. v. Collector of Customs, Madras -1992 (62) ELT 566 (Tribunal) = 1992 (043) ECR 423, holding that filter aids/non-woven filter panels, in rolls, fall under Heading 5911.10 being articles used solely for technical purposes as per Note 7(b) of Chapter 59. The relevant extract from the order is reproduced below :-
“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 or 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.”
4. It is relevant to point out that the Tribunal in coming to the aforesaid conclusion relied upon and followed an earlier judgment of the Tribunal in the case of Simplex Mills Co. v. CCE (Order No. E/150-161/92-D dated 28-2-1992).
5. On a careful consideration of Chapters 56 and 59 we find that there is force in the submission of the learned Counsel for the respondent that non-wovens meant for industrial application would fall under Chapter 59 and would therefore stand excluded from Chapter 56.
6. Respectfully following the ratio of the Tribunal in the Simplex Mills and Trijama Filterall cases and also for the other reason aforesaid, we hold that the imported goods are assessable under Heading 5911.10 of Customs Tariff Act, 1975. Hence we uphold the impugned order and reject the appeal, as already pronounced in open Court.
7. [Assent per : S.K. Bhatnagar, Vice President]. I observe that Chapter 56 includes “Wadding, felt and non-wovens”.
8. As per Chapter Note 2 the term “felt” includes needle-loom felt and fabrics....." and Heading 56.02 covers “Felt, whether or not impregnated, coated, covered or laminated” and sub-heading 5602.90 covers “Others”.
9. Chapter 59 on the other hand covers “Impregnated, coated, covered or laminated textile fabrics; textile articles of a kind suitable for industrial use”.
10. Chapter Note 7 thereof states that “Heading No. 59.11 applies to the following goods which do not fall in any other heading of Section XI” i.e. only the goods specified thereunder. These include felt and felt-lined woven fabrics, coated, covered or laminated..... and similar fabrics of a kind used for other technical purposes.
11. Heading 59.11 covers “Textile products and articles for technical uses specified in Note 7 to this chapter” and these include under 5911.40 “Straining cloth of a kind used in oil presses or the like including that of human hair”.
12. In the instant case, as per Bill of Entry the item is “Needle felt with woven scrim” (Non-woven felt media) for manufacture of Air Pollution Control Filter Bags .........”. The test report dated 28-7-1986 indicates that:
“Sheet composed of a layer of scrim (woven fabric) made of yarn on non-cel-lulosic origin (Polyester) Sandwiched by felt composed of fibres of non-cel-lulosic origin (Polyester) with non-adhesive coating material. These kinds of fabrics are described as non-woven fabric and can find use as filter media.”; and
as per the test report dated 9-6-1989 :
“It is seen from the technical books available here that these kinds of fabrics are described as non-woven textile fabrics and may find use as filter media. Heading 59.11 covers textile products and articles for technical uses. In H.S.N. under Heading 59.11, it is stated that ”Textile products" and “articles” of this heading present particular characteristic which identify them as being for use in various types of machinery, apparatus, equipment of instrument or as tools or as part of tools.”
13. “Felt” including needle-loom felt and fabrics are undoubtedly covered by Chapter 56 and in fact chapter note 3 of this chapter clearly mentions that “Heading Nos. 56.02 and 56.03 respectively covers ‘felt’ and ‘non-wovens’.......”.
14. At the same time it is to be noted that Chapter 56 excludes “felt, coated, covered or laminated with rubber leather or other material of a kind used for ward clothing and other similar fabrics of a kind used for other technical purposes of Heading 55.11 as well as non-wovens for technical uses, of Heading 55.11 as per exclusions mentioned under Headings 56.02 & 56.03 respectively.
15. In view of the admitted industrial use of the product, the Heading 59.11 which is specific for textile products and articles of technical uses, indicated under chapter note 7 thereof, comes into play.
16. As the issue whether chapter note 7 covers only textile products ‘in piece’ or ‘cut to length’ or ‘cut to shape’ or could be taken to cover fabric in length as well has already been settled by earlier orders of the Tribunal referred to by Hon’ble Member (00J). Heading 59.11 prevails.
17. Even otherwise, when goods are prima facie classifiable under two or more headings they are to be classified under heading which occurs last in numerical order among those which equally merit consideration.
18. In view of the above discussion the appeal is rejected as already announced in the open Court.
Equivalent 1994 (70) ELT 290 (Tribunal)