ORDER
S.L. Peeran, Member (J)
1. In these appeals, a common question of law and facts arises. Hence, these are all taken up together for disposal as per law.
2. The question that arises for consideration in all these appeals is the correct classification of the impugned goods, namely HDPE Tapes or strips and HDPE sacks manufactured therefrom. The department has classified HDPE strips or tapes under Heading 5406.90 of the Schedule to the CET Act, 1985 while the assessees have claimed classification under Heading 3920.32. HDPE Sacks were classified under heading 5406.90 instead of the claim under 3922.90 from the period 28-2-86 to 28-2-87 and thereafter Heading 3926.90 of the Schedule of CET Act, 1985. The Counsel for the appellants, has filed a detailed chart in respect of the appeals. The details of the same are reproduced below –
Sl.No
Appeal No.
Name of Appllent
Issue
SCN dated
Period under refund
Amount of refund
Heading& Sub-heading under
whichduty paid
Heading & Sub heading under which
claim of refund and classfication was made
Date of Asstt. Colfettoirs Order
Date of order of Col-lector (Appeals)
1
E-212/90-D
Arm ploymers Limited
Classfication
30-6-87
39-22 and 3922.90 upto 28-2-S7 and there
after 39 and 3923.90
18-8-87AC’s classfication 54.06,5406.90
2-2-89
2
E/205/90-D
Veer Plastic Pvt.Ltd.
Refund
14-12-87
1-7-86to 25-11-86
Rs 3,65,000/-
54.065406.90
39.22 and 3922.90
30-3-88
26-8-89
3
E/207/90-D
Gujatat Raffia IndustriesLtd
-do-
14-12-87
Oct, 86 toMar, 87
Rs.3,82,033/-
-do-
39.22 and28-2-67 and there after 39.26
22-2-88
30-3-89
40.
E/209/90-D
Shree Damodar Ployfab Pvt.Ltd.
-do-
14-12-87
1-1-86 to 30-11-86
Rs.4,25,000/-
-do-
and 39.22 and 3922.90
15-3-88
26-7-89
5.
E/1821/W90-D
Annapurna Ployplast Ltd.
-do-
14-12-87
1-4-86 to 30-10-86
Rs2,20,865/-
-do-
39.222 and 3922.90
24-2-88
28-1-89
6.
E/211/90-D
Gopal Polyplast Ltd.
-do
14-12-87
1-5-86 to 30-10-86
Rs.2,35,000/-
-do-
39.21 and 3922.90
S^S
.7
E/1821/S9-D
Gujrat Dyestuff Ind Pvt Ltd..
-do-
4-11-86
l-4-86 to
30-9-86
Rs.l,95000/-
-do-
3922.90
7-8-87
28-2-89
8
E/1822/S9-D
Indoplast Engineers
-do-
117-6-87
25-4-86 to 24-9-86
Rs. 1,01,671/-
-do-
-do-
17-8-87
28-2-89
3. As per the chart above, the question of classification is in respect of appeal No. E/212/90-D in the case of Arm Polymers Limited and in the remaining cases, it pertains to refund of duty paid and the appellants claim for classification under Chapter 39 as articles of plastics carrying nil rate of duty.
4. We have heard Shri K.B. Trivedi, learned Advocate, for the appellants, and Smt. J.M.S. Sundaram, learned DR for the respondents. The learned Advocate submitted that this matter is no longer res Integra as the Tribunal has already gone into the aspect of classification in the case of Kanpur Plastipacks v. Collector of Central Excise, Kanpur reported in (Order Nos. 407 to 409/92-D, dated 21-9-92) and has held that the ruling of the Hon’ble M.P. High Court in the case of Raj Pack well & Others v. Union of India, 1990 (50) E.L.T. 201 is fully applicable to the facts of these cases pertaining to classification of the impugned goods. He contended that there was no reason to differ from the ruling of the High Court of Madhya Pradesh as well as the ruling of the Kanpur Plastipacks which has already been followed by this Bench.
5. Mrs. Sundaram, learned DR pointed out that the appellants had made a claim for classification under Heading 32.90 while the Hon’ble Madhya Pradesh High Court has held that HDPE sacks fall under Heading 23.90 and therefore, the claim of the appellants cannot be considered under the heading they had asked for but the ruling of the Hon’ble Madhya Pradesh High Court and the Tribunal has to be given proper effect. The learned Counsel contended that although they had made a prayer for classification under Heading 3922.90 but in view of the ruling cited, HDPE sacks have to be classified under Heading 3923.90.
6. We have carefully considered the submissions made by both the sides and have perused the ruling rendered by the Hon’ble Madhya Pradesh High Court as well as the ruling rendered by the Tribunal in the case of Kanpur Plastipacks Ltd. We have already taken a view that the ruling of the M.P. High Court in the case of Raj Packwell pertaining to the classification of the impugned goods is fully applicable as the Hon’ble High Court has considered all the contentions raised by the Revenue and had examined these contentions for classification under Heading 54 as articles of textile and after careful consideration has rejected the same and has held that the goods are classifiable under Chapter 39 as articles of plastics. The Hon’ble High Court has also taken into consideration the rulings rendered by the Tribunal under the erstwhile Tariff as in the case of Shri Radhey Industries, Kalol, 1983 (12) E.L.T. 379 and M/s. Shellya Industries, Bangalore, 1983 (14) E.L.T. 1827 and has held that even as per these rulings, the impugned goods are articles of plastics and not articles of textiles. The findings given by the Tribunal in the case of Kanpur Plastipacks Ltd. at Para 5 are reproduced below –
“We have carefully considered the submissions made by both the sides and perused the ruling rendered by the Hon’ble Madhya Pradesh High Court. We have also seen the reasoning given by the learned Collector in the impugned order. We find that the Hon’ble Madhya Pradesh High Court has considered all the aspects of the matter and as indicated in the contentions placed by the Revenue, has upheld the classification under Chapter 39, as noted by us (supra). The ratio of the ruling rendered in the case of Shri Radhye Industries by the Tribunal has been gone into by the Hon’ble High Court and has held that even as per this’ ruling HDPE tape is a plastic material and the tape was coming under TI 15A(2) and not under item 18. The Hon’ble High Court has observed that in view of the aforesaid decisions given on facts by the Tribunal and as confirmed by the Supreme Court and accepted by the Department, there is no dispute that the HDPE sacks are articles of plastics and not textile materials. The High Court has also considered the Chapter notes, section notes of Chapter of both 39, 54 and the evidence produced in the nature of letter issued by the Dy. Director, Ministry of Textile and Textile Commissioner and has concluded that the articles HDPE strips or tapes would fall under Heading 3920.32 and not under Heading 5406.90 and similarly HDPE sacks would fall under Heading 3923.90 and not under Heading 5406 of CET Act, 1985. In view of this ruling, there was no reason for the learned Collector (Appeals) to have not followed the ruling of the M.P. High Court as the same is having a binding effect in this matter. The evidence produced by the appellants has also been of similar nature as the one placed before the Hon’ble M.P. High Court. There is no reason to differ from this ruling. The learned Collector’s reasoning is not sustainable and is liable to be set aside. In the result, the appeals are allowed with consequential relief, if any.”
7. In view of the ratio of the above two rulings, the appellants succeed in these appeals and the same are allowed with consequential relief subject to the provisions of Section 11B of Central Excises and Salt Act, 1944. The learned Advocate submitted that they are entitled to the refund of the amounts deposited by them in these appeals and requested for a direction to the lower authorities to refund the same. The claim of the appellants may be examined for refund of these amounts and consequential relief may, be granted as per law.