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Superior Fabrics V/S CCE, Kanpur

    E/2731/2009 (DB) (Arising out of O/A No. 144-CE/Appl/KNP/2009 dated 29.06.2009 passed by Commissioner(Appeals) Customs & Central Excise, Kanpur) and Final Order No. 70170/2018

    Decided On, 15 January 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Allahabad

    By, MEMBER

    For Petitioner: Anurag Mishra and Prateek Dawar, Advocates And For Respondents: Rajeev Ranjan, Joint Commr. (A.R.) and Mohd. Altaf, Asstt. Commr. (A.R.)

Judgment Text

1. The appellant in appeal against the impugned order where duty has been demanded by denying the benefit of Notification No. 30/2004-CE dated 09.07.2004.

2. The facts of the case are that the appellant is manufacturing and clearing Canvass and Tarpaulin and classifying the same under sub heading 6307 of the Central Excise Tariff Act availing the exemption under Notification No. 30/2004 dated 09.07.2004. Revenue is of the view that these are the parts and accessories of mot

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or vehicle and appropriately classifiable under heading 8708 which does not have exemption under Notification No. 30/2004-CE therefore proceedings were initiated against the appellant to classify the said goods under heading 8708 and to demand duty along with interest and to impose penalty. The matter was adjudicated, demand of duty along with interest were demanded, penalty was also imposed by classifying the same under heading 8708 of Central Excise Tariff Act. The said order is appealed before us.

3. Heard the parties.

4. Considering the fact that identical issue came up before this Tribunal in the case of J.S. Fabrics v. Commissioner of Central Excise, Kanpur : 2014 (307) E.L.T. 784 (Tri.-Del.)], wherein the Tribunal observed as under:-

5. We have considered the submissions from both the sides and perused the records. The only point of dispute in this case is as to whether the canvas canopies specially designed for lorries, tool bags and web equipment of textile material are classifiable under sub-heading 6306/6307 and hence fully exempt from duty under Notification No. 30/2004-CE or the same are classifiable as accessories of motor vehicle under heading 8708.

6. As regards the tool bag and web equipment, the same are made of textile material. Web equipment is canvas strap made of textile material and the same in view of HSN Explanatory notes under heading 6307 would be covered by heading 6307 of the Central Excise Tariff, as heading 6307 of Central Excise Tariff is patterned on HSN heading 6307. As regards tool bags, the same, in our view, would be covered by heading 63.05 as this heading is also patterned on HSN heading 63.05 and accordingly to HSN explanatory notes to this heading, the same covers textile bags and sacks of all kind for packing of goods for transport, storage, sale etc. Since both of these items are covered by Chapter 63, the same would be exempt from duty under Notification No. 30/2004-CE as no input duty Cenvat credit has been availed.

7. As regards the canvas canopies specially designed for lorries, we find that these canopies made from canvas tarpaulin, are basically the tarpaulins cut into special shapes for covering goods loaded into open lorries of different models. All tarpaulins are covered by heading 6306 of the Central Excise Tariff. This heading of Central Excise Tariff is identical to heading 6306 of the HSN. In terms of HSN explanatory notes to HSN heading 6306, tarpaulins are used to protect goods stored in the open or loaded in ships, wagons, lorries, etc. against bad weather, that they are generally made of coated or uncoated man-made fiber fabrics, or heavy to fairly heavy canvas (of hemp, jute, flex or cotton) and are waterproof, that tarpaulins are generally in the form of rectangular sheets, hemmed along sides and may be fitted with eyelets and that the Tarpaulin which are specially shaped (e.g. for covering hayricks, decks of small vessels, lorries etc.) also fall in this heading provided they are flat. The canvas Tarpaulins, in question, are specially shaped for different model of lorries and though the Department's contention is that the same are not flat, no evidence in this regard has been produced. In our view, therefore, these Tarpaulin would be correctly classifiable under heading 6306 and not as parts or accessories of motor vehicles under heading 8708. Apex Court in the case of CCE, Shilling v. Woodcraft Ltd., reported in : 1995 (77) E.L.T. 23 (S.C.) has held that when a heading in Central Excise Tariff is patterned on HSN, the HSN explanatory note would have persuasive value for ascertaining the scope of the corresponding heading in the Excise Tariff heading and accordingly in this case, the canvas canopies specially shaped for lorries of different models would be classifiable under sub-heading 6306 and accordingly the same would be eligible for exemption under Notification No. 30/2004-CE

8. As the issue has already been decided by this Tribunal holding that the goods in question are appropriately classified under heading 6306 of Central Excise Tariff Act, therefore we hold that appellant are entitled for exemption under Notification No. 30/2004-CE In that circumstances no duty is payable by the appellant. In this premise we set aside the impugned order and allow the appeal with consequential relief, if any.

(Dictated and pronounced in the court.