Full Judgment
2. The main ground made out in this appeal is on the basis of the definition of plastic appearing in note 1 of Chapter 39. The Revenue has contended that the goods falling under Heading No. 39.01 to 39.14 will only be covered as "plastics". They have stated that the goods have been laminated with cotton fabrics and therefore the goods would not be covered squarely by note 9 of Chapter 39. HSN explanatory note at page 554 Vol. II is also relied on. They contend that the impugned goods can be bent manually around a cylinder of diameter of 7 mm without fracturing at the ambient temp., which is more than 15oC and less than 30oC and, therefore, the goods would be covered by Heading No. 59.03.
3. We have heard Shri L.N. Murthy, learned JDR for Revenue and Shri J.M. Patel, learned advocate for the respondents and carefully considered their submissions. The learned Collector (Appeals) has observed as follows: "Base fabrics is laminated with PVC film under heat and pressure with plastic adhesive. This technique is called lamination.
Lamination means act of constructing something by placing layer upon layer. Wall paper is 'Wall covering for decorations'. Note No. 9 of Chapter 39 squarely applies in this case. Volume No. 2 of Harmonised Commodity Description and Coding System (page 554) conforms to the appellants' case. The relevant portion is appended below: 'Plastics & Textile combination wall or ceiling coverings which comply with note 9 of this chapter are classified in Heading No. 39.18. Otherwise the classification of Plastics and textiles combination is essentially governed by note 1(4) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.' The Note 9 in the above system is the same as in Central Excise Tariff Act. The textile fabrics is only by way of reinforcing agent and therefore, should be excluded from Chapter 59. Sub-heading 3918 is a specific heading for wall covering. Sub-heading 5903.19 is a general heading covering all laminated fabrics. Specific heading must be preferred to general heading. The Supreme Court in the case of Commissioner of Sales Tax v. S.N. Brothers -1973-31 S.T.C. 302 has also taken the above view.
In view of the above discussions, I set aside the order of the lower authority and allow the appeal with consequential relief, if any." "For the purpose of Heading No. 39.18, the expression wall or ceiling coverings of plastics applies to products in rolls, of a width not less than 45 cms., suitable for wall or ceiling decoration consisting of plastics fixed permanently on a backing of any material other than paper, the. plastic layer (on the face side) being grained, embossed, coloured, design-printed or otherwise decorated." "1. Except where the context otherwise requires, for the purposes of this Chapter the expression 'textile' applies only to the 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.
(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per sq. mtr. and whatever the nature of the plastic material (compact or cellular), other than:
(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually Chapters 50 to 55,58 or
60) : for the purposes of this provision, no account should be taken of any resulting change of colour;
(2) Products which cannot, without fracturing, be sent manually around a cylinder of a diameter of 7 mm, at a temperature between 15C and 30 C(usually Chapter 39);
(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39);
(4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually Chapters 50 to 55,58 or 60);
(5) Plates, sheets or strips of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 39); (b) Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with plastics, of Heading No. 56.04."
6. By reading the chapter note and the chapter heading, it is clear that the product wall or ceiling coverings based on textile base fabric on which PVC film is laminated is classifiable under Chapter
39. There is no dispute of the product being in rolls of a width less than 45 cms. It is being Used for wall or ceiling decoration and also consists of plastic permanently fixed on material other than paper. The plastic layer (on the face side) being grained, embossed, coloured, designed, printed or otherwise decorated is also not in dispute. Therefore, the Chapter Note 1 and 2 to Chapter Note 59 is not applicable to this case.
Chapter 59.03 applies to Textile fabrics impregnated, coated, covered or laminated with plastics. This Chapter 59 has no application to wall covering of plastics which falls specifically under Chapter 39. There is no infirmity in the reasoning given by the Collector (Appeals) in the impugned order. There is no merit in the appeal and it is liable to be rejected and we order accordingly. Appeal dismissed.