ORDER
P.C. Jain, Member (T)
1. When the matters were called Shri Jitendra Singh, ld. advocate represents for eight respondents as mentioned in the preamble. One of the respondents’ case namely, Shalu Dyeing & Printing Mills (A. No. 1674/93-B1) is to be decided on merits as for the request by the said respondent. There is no representation from the other respondents. In so far as the other respondents are concerned we observe that the notice for today’s hearing had been sent by the registered post. None of the notice has been returned undelivered. In the circumstances, we presume that the remaining respondents have received the notice for hearing; hence, we proceed to hear the matters ex parte.
2. All these appeals filed by the Revenue raise common questions and, therefore, all the matters are being taken up together for passing a common order.
2.1 Facts of the cases are as follows :-
(i) Revenue issued show cause notices to various respondents demanding duty on ‘printing frames’ falling under Chapter Heading 84.42 falling within the period 28th February, 1986 and 2nd September, 1987. It had been alleged that the respondents have been purchas-. ing iron frame, cloth and cover and other accessories from the market. The cloth was fixed on a frame and a design was traced out. Thereafter, Chemicals were applied. The design was embossed with the help of electricity. The complete printing frames so manufactured by the respondents were used captively in their own factories as part /component of printing machines or as printing frames of printing tables. It was also alleged that the printing frames fall under Tariff Heading 84.82. Since the respondents had not taken their Central Excise Licence and observed formalities under Central Excise Law which they were required to do, they were asked to pay various amounts of duty in the case of various respondents.
(ii) On adjudication the Assistant Collector concerned dropped the demands of duty in view of the Central Government’s Notification No. 39/90-C.E. (N.T.), dated 10-10-1990 whereby the Central Government in exercise of its powers under Section 11C of the Central Excises and Salt Act, 1944 directed that no duty on such printing frames failing under Tariff Heading 84.42 be recovered during the period 28-2-1986 to 2-9-1987.
(iii) Thereafter, the Revenue filed applications before the Collector (Appeals) under Section 35F of the said Act. The lower appellate authorities have dismissed the applications filed by the Revenue stating that the applications are not maintainable because new cases regarding the classification of the said printing frames under Chapter 59 of the Central Excise Tariff Act, 1985 was sought to be made whereas the classification in the show cause notices issued by the Revenue itself was assumed to be under Chapter 84. The said classification under Chapter 84, it may be noted at this stage, has also been given in the Central Government’s notification under Section 11C as mentioned above. One of the lower appellate authorities while dealing with the new ground of classification urged by the Revenue in the applications filed under Section 35E has held that the goods would fall under Tariff Heading 84.42 as originally assumed by the Revenue in the show cause notices and not under Tariff Heading 59.09 as urged by the Revenue before the said lower appellate authority (A. No. 740/93-B1 and nine others).
3. Hence, these appeals by the Revenue.
4. We have heard the ld. JDR, Sh. K.K. Dutta for the Revenue. We have also heard the ld. advocate, Sh. Jitendra Singh on behalf of the respondents in the cases represented by him. The ground taken up by the appellant-Collector namely, Collector of Central Excise and Customs, Surat that printing frames fall under Tariff Heading 59.09 as mentioned above is not correct. Grounds taken by the appellant-Collector are set out below :
“Ground of Appeal
(i) The Collector Central Excise (Appeals), Ahmedabad has erred in holding that the so-called printing frames manufactured by the firm and captively used were falling under Chapter Heading No. 84.42 and not under Chapter Heading No. 59.09 as textile article.
(ii) In fact, what the assessee manufactured were flat bed screens, manufactured from Nylon Bolting cloth and wooden/metal frames are purchased from open market.
(iii) The nylon Bolting cloth is cut to required size and affixed to the frame by glue. A light sensitive emulsion is coated on the cloth. The negative containing the required design is placed between the screen is exposed to produce the required designs. The emulsion on the screen hardened wherever the light has passed through the screen and rest of the emulsion is washed away by water. The emulsion is used to make a design as well as close the pores of the screen as per design. These screens, one for each colour, are mounted on the printing machine to print the requisite design on the fabrics. These flat bed screens were/are correctly classifiable under Chapter Heading No. 59.09 of the Schedule to Central Excise Tariff Act, 1985 as the “Textile product” of a kind suitable for industrial use.
(iv) As per Explanatory Notes to the Harmonised System of Nomenclature (H.S.N.) page 823, bolting cloth cut to shape and trimmed with tapes or furnished with metal cyclets or cloth mounted on a frame for use in screen printing is classifiable as textile article of a kind used for technical purposes.
(v) Section Note l(a) to Section XVI excludes article of textile materials for technical uses (Heading No. 59.09) and hence the impugned goods cannot be classifiable under Heading No. 84.42.
(vi) Since, the goods flat bed screens referred to as printing frames in the show cause notice are classifiable under Chapter Heading No. 59.09, the notification No. 39/90-C.E. (N.T.), dated 10-10-1990 in respect of printing frames classifiable under Chapter Heading No. 84.42 is not applicable to the impugned goods.”
In the aforesaid grounds it is contended by the Appellant-Collector that the flat bed screen referred to as ‘printing frames’ in the show cause notices are classifiable under Chapter Heading No. 59.09.
As against the aforesaid grounds we also reproduce below the finding of the Collector (Appeals) Sh. K.V. Vaidyanathan as given in his Order No. KVV-09/92-SRT dated 21st December, 1992 :
“Earlier, I have dealt with similar issues wherein I passed an order as under, Vide Order-in-Appeal No. KVV-573/92-BRD dated 11-7-1992 :
“It may be seen that bolting cloth is classified under Heading 59.09. But when it is mounted on a wooden or metal frame it turns into an article of textiles of a kind suitable for industrial use but still falling under Heading 59.09. Because, the cloth is converted now into an article of textile, and amounts to manufacture even though the bolting cloth may have been classifiable under the same Heading 59.09. Thus, at this stage the respondents can be said to have manufactured ‘Flat Bed Screen’ falling under Heading 59.09 out of bolting cloth and wooden/metal frames and the respondents were required to declare the same by filing classification list and price list. However, I, find that the show cause notices were not issued in respect to these flat bed screens falling under Heading 59.09.
By application of photo sensitive chemicals, the flat bed screens are converted into printing frames and the same are no more considered as articles of textiles under Heading 59.09. They are therefore, rightly classifiable under Chapter Heading 84.42 as printing frames.”
5. We have carefully considered the pleas advanced from both the sides on the question of classification of the printing frames referred to in the show cause notices. We are inclined to agree with the findings of the lower appellate authority that the printing frames as manufactured by the respondents would fall under Tariff Heading 84.42 because it no longer remains an article of textile but by application of photo sensitive chemicals the textile material is converted into printing frame and would, therefore, rightly be covered by Heading 84.42. Reliance placed by the appellant-Collector on Section Note l(a) to Section XVI is of no avail because that note excludes only specific articles falling under specific Headings namely, 40.10 and 40.16. Tariff Heading 59.09 is not mentioned in Section Note l(a) to Section XVI of Central Excise Tariff Act, 1985. There is no indication in the ground set out by the Collector that Central Excise Tariff Act, 1985 is fully aligned with HSN. For this reason, reliance placed by the appellant-Collector on HSN Explanatory Notes would not be appropriate. Apart from what has been said above, the other ground on which lower appellate authorities have rejected the applications of the Revenue under Section 35E remains unimpeachable. It has been rightly held by the said lower appellate authorities that the Revenue cannot make new cases at the appellate stage beyond what has been made out in the original show cause notices. In view of the aforesaid discussions, we do not find any merits in the appeals filed by the Revenue. Hence, we dismiss the same.