2009(01)LCX0384

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI [COURT NO. III]

S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J)

Prasad Enterprises

Versus

Commissioner of Central Excise, Delhi-III

Stay Order No. C/2/2009-(PB), dated 20-1-2009 in Application No. ST/Stay/2019/2008 in Appeal No. C/659/2008

Advocated By -

S/Shri L.P. Asthana with Abhishek Jaju, Advocates, for the Appellant
Shri Sumit Kumar, DR, for the Respondent.

[Order per: M. Veeraiyan, Member (T)]. -

Heard both sides on the stay petition.


2. The applicant imported what is described as bonded fabrics. It is claimed that the same consists of woven fabrics (63% by weight) and knitted fabrics (36% by weight) bonded together by using about 0.5% of the bonding material in the form of adhesives. The CRCL slightly in varying percentage but generally confirm that these two fabrics are bound together by adhesive materials. Commissioner has taken a view that the fabrics consist of different types of yarn and it should be treated as "other than woven fabrics" and accordingly, confirmed the differential duty of Rs. 43,61,974/- along with interest and imposed penalty. Commissioner has not agreed to the classification under 59070099 as claimed by the applicant.


3. Learned Advocate submits that Chapter 55 refers to other woven fabrics only and in particular 55151230 refers to fabrics made of more than one variety of yarn. In their case, it is not a case of woven fabrics consisting of different varieties of yarn but it consists of different types of fabrics bound together. He also submits that similar bonded fabrics are being assessed in other ports by classifying them under 5907. In addition, he submits that Notes of Section XI gives preference to Chapter 57 as compared with 59.


4. Learned DR reiterates the findings of the Commissioner and submits that the report of the Professor of IIT cannot be relied inasmuch as the authenticity of the samples given to him cannot be established.


5. We have carefully considered the submissions from both sides. We, prima facie, agree with the submission of the learned Advocate that Chapter 55 refers to woven fabrics which may have more than one variety of yarn and the impugned goods are two different fabrics bound together by using adhesive material and therefore, the classification sought for by the applicant seems appropriate.


6. In light of the above, we waive the pre-deposit of the dues as per the impugned order and stay recovery thereof till disposal of the appeal.

(Dictated and pronounced in the open Court)

Equivalent 2009 (245) ELT 0481 (Tri. - Del.)