Commissioner Of Central Excise, Haldia vs Versu

Appeal No. E/589/2007 (Arising out of the order in original No.13-14/Commissioner/CE/Haldia/Adjn./2007 dated 08.08.2007 passed by the Commissioner of Central Excise, Haldia.

FOR APPROVAL AND SIGNATURES OF

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities?

Commissioner of Central Excise, Haldia. APPLICANT(S) VERSU Gloster Jute Mills Ltd. ...RESPONDENT (S)

APPEARANCE:

SHRI B. Saher, Spl. Counsel, for the Appellant Dr. S. Chakraborty, Adv. & P. Banerjee, Adv, Sri. S. Bavariar, Adv, for the Respondent

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

Date of Hearing: 05.10.15 Date of Decision: 05.10.15

ORDER No.FO/A/75875/2015

Per Shri H.K.Thakur

This appeal has been filed by the Revenue against OIO No. 13-/14/Commissioner/CE/Haldia/Adjn/2007 dt 8/8/2007 passed by Commissioner of Central Excise Haldia.

2 Shri. B. Sahar (Special counsel) appearing on behalf of the Revenue argued that Respondent filed classification list dt 16/3/1995 and described the goods manufactured as Floor covering of Jute / Jute Mattings containing more than 51% by weight of Jute Fabrics and paid 5% duty in terms of Notification No. 29/95-CE 16/03/1995 as per Sr. No. 3 of the table to this notification. That it is the case of the department that mattings manufactured by the Respondent are not floor coverings as these can also be used for packing purposes or table wall covering purposes. That it is not the case of the Respondent that mattings manufactured are exclusively used as floor coverings in order to avail 5% duty as per Sr. No. 3 of table to Notification NO. 29/95-CE dt 16/3/1995. That the period of demand is 16/3/1995 to 28/02/1997 and Notification No. 29/95-CE was rescinded from 23/7/96 and duty on the goods manufactured by the Respondent will be as per Sr. No. 1 of this notification till 23/7/1976. That as per dictionary meaning matting is defined as.

A great variety of plaited or woven mats and similar articles made of coir fiber, jute, straw. Uses: floor or wall covering, table mats. It was thus strongly argued by the Learned special counsel that OIO dt 8/8/2007 passed by the Adjudicating authority is erroneous & should be set aside by denying the benefit of Sr. No. 3 of Notf No. 29/95-CE dt 16/3/1995 to the Respondent.

3 Dr. Samir Chakraborty (Advocate), Sh. P. Banerjee (Advocate) and Sh. S. Bagaria (Advocate) appeared on behalf of the appellant. Sh. S. Chakraborty argued that Respondent claimed the classification of their manufactured product Jute Mattings under CETH 5702.49 as carpets & other textile floor coverings of Jute. That classification list was approved by the appropriate authority by allowing the benefit of Sr. No. 3 to the table to Notification No. 29/95-CE. It was the case of the Learned Advocate that Adjudicating authority has correctly decided the issue that mattings are floor coverings but capable of being used for other purposes. That notification and the tariff do not specify that floor coverings of Jute should be exclusively used for floor covering. That Notification No. 29/95-CE was rescinded with effect from 23/7/96 and no duty as per Sr. No. 1 of the table to this notification can be demanded after 23/7/1996. That as per clause 82 of the Finance (No. 2) Bill 1996 & CBEC Circular F No. 334/14/95-TRU dt 22/7/96 the Central Excise schedule was amended with a view to build exemptions in the tariff itself & matting manufactured by the Respondent continued to be levied to 5% duty. That in order to achieve the object another Notification No. 19/96-CE dt 23/7/1996 was issued till the Finance bill 1996 was enacted which was done by rescinding Notification No. 31/96-CE dt 28/09/96: That no duty for the period 23/07/96 to 28/02/97 can be demanded from the Respondent in excess of 5%. That Respondent was correctly entitled to exemption under Sr. No. 3 of Notification No. 29/95-EC as a specific entry always prevail over the general enteric as per the following case laws.

(i) Moorco (India) Ltd Vs CC [1994 (74) ELT 5 (S.C.)]

(ii) Supdt of Central Excise Vs Vac Met Corporation. Pvt. Ltd [1985 (22) ELT 330 (S.C.)]

3.1 Learned Advocate also relied upon the description of word matting given in Fairchilds Dictionary of textile as under:

Matting : A great Variety of plaited or woven mats and similar articles made of coir fiber Jute, straw. Uses: Floor or wall coverings, table mats. That reliance placed by the department on the wordings used in Notification No. 50/90-CE dt 20/3/90 will not help the case of the Revenue as this notification does not say that mattings are not floor coverings. That it is held in the case of Gujarat Ambuja Exports Vs CC [2011 (269) ELT 239 (J)] that interpretation of a definition contained in a particular notification has to be confined only for the purpose of that notification.

3.2 That as the classification list filed by the Respondent was duly modified under CETH 5702.49 by application of mind, therefore, extended period can not be invoked and the demand is time barred as held by Adjudicating authority in paragraphs on page  8 of the O-I-O dt 8/8/2007.

4. Heard both sides & perused the case records. The issue involved in the present appeal filed by the Revenue is whether jute mattings manufactured by the Respondents are floor coverings or not. Respondent claimed the benefit of Sr. No. 3 of Table, reproduced below, to Notification No. 29/95-CE dt 16/3/1995:-

Table Sr. No. Description of goods Rate (1) (2) (3)

1.

Carpets and other textile floor coverings, knitted, woven, tufted, or flocked, whether or not made up (excluding dari, sataranfi, namdahe, jute carpets and coir carpets)

(i) in or in any relation to the manufacture of which any process is ordinarily carried on with the aid of machines.

(ii) other

30% ad valorem

Nil

2. Floor coverings of coir Nil

3. Floor coverings of jute 5% ad valorem

4. Hand-made carpets, whether or not any machines have been used to achieve better finish during pre-weaving or post-weaving operations.

Nil

4.1. Both the Revenue as well as the Respondent has relied upon the same Dictionary description of the word mattings as neither the word matting nor Floor covering has been defined in Notification No. 29/95-CE. As per this dictionary meaning matting has been described as plaited or woven mats & similar articles made of coir fiber Jute Straw and the uses are for floor or wall covering & table mats. It is thus observed that as per this meaning the mattings can also be used & understood as floor coverings. The argument taken by the Revenue that floor coverings of jute should be exclusively used for floor covering is not supported by as such specific mention in the exemption notification. It has been correctly observed by the Adjudicating authority that jute mattings are neither specifically included in Sr. No. 1 nor excluded from Sr. No. 3 of the table annexed to Notification No. 29/95-CE dt 16/3/95. Revenue has also taken an argument that exemption to Jute Matting was available under earlier Notification No. 50/90-CE dt 20/3/90, therefore, Jute Mattings are different products. In this regard we observed that Notification No. 50/90-CE dt 20/3/90 does not say that Jute mattings are not floor coverings. Accordingly we hold that nothing bars the appellant to avail the benefit of Sr. No. 3 to Notification No. 29/95-CE for their product Jute Mattings when the products can also be capable for other uses. It is not the case of the Revenue that the goods manufactured by the Respondent can not be used at all as floor coverings. Accordingly we do not find any reason to interfere with the orders on merits passed by the Adjudicating authority.

5. On the issue of time bar nature of demand Learned Advocate appearing on behalf of the Respondent argued that Adjudicating authority on page 8 of the OIO dt 8/8/2007 has clearly held that there was no deliberate act or willful misstatement on the part of the Respondent as departmental officer has approved classification list, after careful consideration. It is observed from the copy of said classification list, available on case records, that Respondent gave correct description of the goods manufactured & claimed 5% exempted rate which was approved by a change in the CETH to 5702.49. We thus agree with the observations of the Adjudicating authority that there was no willful suppression or misstatement on the part of the Respondent to evade payment of duty and accordingly we also hold that extended period can not be invoked in the present proceedings.

6. In view of the above observations we dismiss the appeal filed by the Revenue by upholding the order-in-original dt 8/8/2007 passed by the Adjudicating authority.

(Operative part of the order was pronounced in the court.)

(D.M.MISRA) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER

T.K

6 App/E/589/07