insulIn Associates Vs. Commissioner of Central Excise

insulIn Associates vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Oct 13, 2000

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Citation: sooperkanoon.com/19428
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On: Oct 13, 2000
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

insulIn Associates

Respondent

Commissioner of Central Excise

Legal References

Reported In: (2002)(145)ELT115Tri(Mum.)bai

Excerpt

.....the product with which we are concerned with is identical to this product and therefore would be classifiable under heading 85.46.5. the second product is stated to be non woven polyester fabric refers to as fleece, laminated either on one side or both sides with plastic.some literature was cited before us to say that its use is only electrical insulation. however, we note that neither the assistant collector nor the collector (appeals) had occasion to examine this question i.e. the sole use of predominant use of the material as electrical insulation. this was so because they did not even consider the initial applicability of heading 85.46. we are therefore of the view that the commissioner (appeals) should be given an opportunity to decide on whether the product is in fact made out to be an electrical insulation by sufficient evidence. we however emphasise that this is the only purpose for which the matter is being remanded back to the commissioner (appeals) and reiterate our earlier view that heading 85.46 is more specific than heading 56.03. the advocate for the appellant undertakes to produce before the commissioner (appeals) evidence to show the use of electrical insulation within a month from the receipt of this order. after considering this material, as well as the material which the department may produce in its support, and after hearing the appellant, the commissioner (appeals) shall pass orders on the classification of this product.

Full Judgment

1. The question for consideration in this appeal is the classification of two products, nomex laminated, coated or covered with plastic and non woven fabrics coated laminated, or covered with plastic. The appellant had, in the classification filed by it, classified by these goods under Heading 5903.99 of the tariff, i.e. as textile fabrics impregnated, coated, covered or laminated with plastic, other than those of Heading 5903. The department issued a notice proposing to classify them under Heading 5603.00. In reply to this, it accepted that the goods would not be classified under Heading 5903. It however said that the goods were used as electrical insulating material and therefore would be rightly classifiable under Heading 8546.00. In the order impugned in this appeal, the Collector (Appeals) has confirmed the finding of the Assistant Collector, that the goods are classifiable under Heading 5603.00. The reason advanced for this classification is that Heading 5603.00 has a more specific description than in Heading 8546.00.

2. It is not possible for us to accept this reasoning. Heading 8546.00 is for electrical insulators of any material. The goods covered under this heading would be used for insulation irrespective of the material of which they are made. This description is specifically with regard to the function since it includes within its ambit insulating material made of any material. Therefore, if the commodity is seen to be an electrical insulating material, it would be classifiable under this heading and not on the basis of what constitute the constituent of the material.

3. The Explanatory Notes to the Harmonised System of Nomenclature made this clear. It is to be noted that the Supreme Court in CCE v.Bake-lite Hylam -1997 (91) E.L.T. 13 had noted that specific entry in the tariff deal with any material. The reason advanced for denying the classification under Heading 85.46 that other alternative heading is more specific therefore cannot be accepted.

4. The classification of nomex paper combined with polyester film, the material made up of polyester film as electrical insulator classifiable under Heading 85.46 has been confirmed by the Tribunal in its decision in Beico Industries Ltd. v. CCE (Appeal C/172/98 Bom.) [2001 (130) E.L.T. 591 (T)]. The product with which we are concerned with is identical to this product and therefore would be classifiable under Heading 85.46.

5. The second product is stated to be non woven polyester fabric refers to as fleece, laminated either on one side or both sides with plastic.

Some literature was cited before us to say that its use is only electrical insulation. However, we note that neither the Assistant Collector nor the Collector (Appeals) had occasion to examine this question i.e. the sole use of predominant use of the material as electrical insulation. This was so because they did not even consider the initial applicability of Heading 85.46. We are therefore of the view that the Commissioner (Appeals) should be given an opportunity to decide on whether the product is in fact made out to be an electrical insulation by sufficient evidence. We however emphasise that this is the only purpose for which the matter is being remanded back to the Commissioner (Appeals) and reiterate our earlier view that Heading 85.46 is more specific than Heading 56.03. The advocate for the appellant undertakes to produce before the Commissioner (Appeals) evidence to show the use of electrical insulation within a month from the receipt of this order. After considering this material, as well as the material which the department may produce in its support, and after hearing the appellant, the Commissioner (Appeals) shall pass orders on the classification of this product.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties insulIn Associates vs Commissioner of Central Excise Same Subject Land Acquisition