{"id":71230,"date":"1991-06-24T00:00:00","date_gmt":"1991-06-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kerala-spinners-ltd-vs-collector-of-central-excise-on-24-june-1991"},"modified":"2016-05-09T06:30:49","modified_gmt":"2016-05-09T01:00:49","slug":"kerala-spinners-ltd-vs-collector-of-central-excise-on-24-june-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kerala-spinners-ltd-vs-collector-of-central-excise-on-24-june-1991","title":{"rendered":"Kerala Spinners Ltd. vs Collector Of Central Excise on 24 June, 1991"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Kerala Spinners Ltd. vs Collector Of Central Excise on 24 June, 1991<\/div>\n
Equivalent citations: 1991 ECR 522 Tri Delhi, 1992 (57) ELT 301 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Jyoti Balasundaram, Member (J)<\/p>\n
1. The classification of cellulosic spun yarn manufactured by blending viscose fibre of cellulosic origin (predominant in weight) with non-cellulosic waste (falling under TI 18(iv) is the subject-matter in dispute in this appeal – the appellants’ claim classification under TI 18-111(1) of the Schedule to the erstwhile Central Excise Tariff which reads as “Cellulosic spun yarn – yarn in which man made fibre of cellulosic origin predominates in weight and…1) not containing any man made fibres of non-cellulosic origin.”\n<\/p>\n
While the Department has classified the yarn under TI 18-IH(ii) as “containing man made fibres of non-cellulosic origin.”\n<\/p>\n
2. The facts leading to the present appeal are as follows :-\n<\/p>\n
 The appellants manufacture various kinds of cellulosic spun yarn falling under Tariff Item 18(III) of the erstwhile Central Excise Tariff. For the first time they began to manufacture a new item of yarn viscose\/Non-cellulosic synthetic Waste Yarn falling under Tariff Item 18(III)(i) i.e. man made fibres of cellulosic origin which predominates in weight with blended non-cellulosic synthetic waste, coming under 18(IV) of the erstwhile Central Excise Tariff. The appellant filed a Classification List No. 28 on 16-11-1983 in respect of the new product. The Superintendent of Central Excise by his letter dated 19-11-1983 informed the appellant that the above classification is not correct as the waste which was declared as non-cellulosic synthetic waste is of non-cellulosic origin. The appellants replied that the impugned yarn is made by blending man made fibre of cellulosic origin which predominates in weight and non-cellulosic waste under 18(IV) is another raw material. It was also submitted that man made fibre of cellulosic origin predominates in weight and it contains only raw materials of non cellulosic waste mentioned in 18(IV) and non-cellulosic man made fibres coming under 18(1) is totally absent.\n<\/p>\n
3. The appellants pointed out that non-cellulosic synthetic waste is one of the raw material used in the manufacture of new product is itself classified under tariff item 18(IV) by the Bombay Customs Authorities. The appellants purchased the same from M\/s. Adithya Mills Ltd., who bought it from the importers M\/s. A.R. Trading Company vide Bill of Entry No. 002536 dated 10-10-1982. The goods imported were classified by the Bombay Customs Authorities at the time of import under Tariff Item 18(IV). In the manufacture of new product the appellants did not use any man made fibre coming under Item 18(1). Therefore, the appellants’ new yarn in which man made fibre of cellulosic origin predominates in weight did not contain any man made fibre coming under 18(1). Thereafter, the Superintendent wrote to the appellants calling for proof that the goods received were synthetic waste and also whether the waste was subjected to any recycling and whether the yarn can be manufactured out of the waste without any recycling. It was replied that waste is not subjected to any recycling and the same is used for blending for manufacture of yarn.\n<\/p>\n
4. The Assistant Collector of Central Excise wrote to the appellant by letter dated 9th Dec, 1983 regarding the classification of materials. This was replied to by letter dated 27-12-1983, pointing out that the term staple fibre as defined by the Central Board of Excise includes all artificial fibre whose staple is small, that is to say which are short in length (generally 1 to 6 inches) is manufactured by cutting long filament fibres into pre-determined, requisite lengths. The waste contains no fibre of pre-determined length. It was also submitted that man made fibre of non-cellulosic origin coming under 18(1) is completely absent. However, the Asstt. Collector classified the yarn under Item 18(III)(ii).\n<\/p>\n
5. By Order-in-Appeal No.3\/84(C) dated 13-1-1984 the appeal was allowed and the matter was remanded for de novo decision. The appellant was also allowed to clear the goods under 18(III) (i) provisionally. Collector of Central Excise (Appeals) also directed that samples of finished product may be got tested in the Laboratory. By letter dated 28th May, 1984 the appellant was given a copy of the Test Report and the appellant was asked to give its comments. It was replied to on 18-6-1984. It was stated that test may be conducted for finding out the percentage of spinnable fibre, entangled fibre, chips and neps, average length of fibres, strength of yarn for finding out whether the yarn contains non-cellulosic synthetic waste, coming under 18(IV) or it is polyester fibre under 18(1). The Asstt. Collector stated in his letter of 16-8-1984 that the matters mentioned in the appellant’s letter are not relevant for the classification of yarn in question. However, re-test can be done at request. By letter dated 31-8-1984 the appellants requested for a re-test and also produced a test certificate obtained on similar material by another company from Shri Ram Test House.\n<\/p>\n
6. The Asstt. Collector by letter dated 13-8-1985 forwarded a copy of the test report. The appellants informed that they are aggrieved by the test result as the percentage of spinnable fibre, percentage of entangled fibre, chips, neps, etc. were absent in the test result. A show cause notice dated 30-5-1986 was issued by the Asstt. Collector and after hearing, the Asstt. Collector of Central Excise passed order dated 29-7-1986 that test result was not enough and the Asstt. Collector agreed with the appellant that re-test should be conducted regarding the various parameters required by the appellant. The re-test result was communicated by letter dated 16-2-1987. The required parameters which were held by the appellants to be relevant as held by the Asstt. Collector of Central Excise by order dated 29-7-1986 was not given in the re-test report.\n<\/p>\n
7. The Asstt. Collector of Central Excise, by order dated 21-3-1988, confirmed the demand in the show cause notice. The Collector (Appeals) rejected the appeal. Hence this appeal.\n<\/p>\n
8. We have heard Shri J.B. Koshy and Shri J.N. Nair and perused the records. Mr. Koshy drew particular attention to the test reports of the Department (at pages 85 to 88 of the paper book) to the test certificate (at page 54) of the Shri Ram Test House issued to M\/s. Radhumilan Syntic (P) Ltd; to the Show Cause Notice at page 66 (and in particular to page 70) to emphasise his point that it is an admitted fact that non-cellulosic waste was used as raw material in blending of yarn; and to the Asstt. Collector’s order dated 21-3-1988 at page 106 wherein it was held that “the definition of TI 18(III)(ii) is not linked to the nature of the material from which the process started, if in the spun stage the yarn contains non-cellulosic fibre the yarn can be classified only under TI 18(III) (ii). “According to the learned Counsel, the issue of classification of such yarn has been settled by the Tribunal in favour of the assessee in the case of Collector of Central Excise, Hyderabad v. Priyadarshini Spinning Mills Ltd.<\/a> [1990 (50) ELT 145] and Order Nos. 161 to 172\/91-D dated 16-4-1991. The learned DR, however, attempts to distinguish the facts – he contends that the use of non-cellulosic waste for blending with man-made cellulosic fibre is disputed in view of the fact that the Asstt. Collector, in his order of 21-3-1988, has held, at page 105, that “the identity between the material imported at Bombay and the material used by the factory has not been established” and in view of the finding in the test report of the sample marked raw material stage (extract found at page 60 of the paper book) that the content of polyester fibre by mass is 100%.\n<\/p>\n
9. We have considered the submissions of both sides and carefully perused the Tribunal’s orders referred to above. In the Priyadarshini Mills case (supra), the Tribunal had occasion to consider the definition of staple and “staple fibre”, while dealing with the issue of classification of “yarn (including sewing thread) of artificial staple fibre not containing synthetic staple fibres.” Yarn made out of a blend of artificial staple fibre and synthetic staple fibre waste was held classifiable under Heading 55.05 CET. Paragraph 13, 14, 15 and 16 of the order are re-produced below :-\n<\/p>\n
“13. A wealth of tehnical literature has been placed before us on what is meant by “staple” & “staple fibre”. At P\/409 of Bernard Corbman’s “Textiles-fibre to fabrics” (5th Edition) it is mentioned that “staple is produced in a wide range of deniers and lengths according to the desired end-uses”. ‘Modern Textiles’ by Dorothy Lyle (at page 26) defines staple fibres, natural or man-made as “short lengths measured in inches or a fraction of an inch”. In Kirk Othmer’s Encyclopedia of Chemical Technology 3rd edition Volume 16 Staple fibres find a mention at pages 106 & 107 as of relatively uniform length. “Staple” is defined at page 29 of the Encyclopedia of Textile by the Editors of American Fabrics & Fashions Magazine (3rd edition) as “fibre in short, controlled lengths, cut from continuous filament. Yarns spun from it are known as staple yarns”. The Dictionary of Textile Terms (at page 587) defines “Staple” as “from Anglo-Saxon, meaning fixed, nor variable” and staple fibre as “filaments of the Cellulosic or man-made groups of fibres which have been cut to the lengths of the various natural fibres”. Marjory L. Joseph’s “Essentials of Textiles” at page 31 says that “man-made staple fibres are short fibres cut to the length required for the processing equipment and they are cut from filaments extruded in large bundles called tow.” R.W. Moncrieff’s “Man-made fibres mentions that “chopped up fibre to be called staple fibre & staple fibres are very short nearly always just a few inches and same in length in a bale”. Heading 55.03 at page 760 & 761 of the Explanatory Notes to the Harmonized Commodity Description & Coding System which covers “Synthetic staple fibres not carded, combede or otherwise processed for spinning” set out that ‘synthetic staple fibres are generally of uniform length which distinguishes them from the waste material of Heading 55.05.\n<\/p>\n
14. The note on waste in the H.S.N. is with reference to length of the fibre and length of the fibre is nowhere mentioned in the test reports of samples not containing either the characteristic of waste or containing varying lengths. The lack of homogenity indicates that the fibres are waste. At this juncture it would be pertinent to note that there is no allegation that waste has not been used in the blended yarn and in fact the show cause notice itself mentions that the goods in question contained imported and generated synthetic waste.\n<\/p>\n
15. As per the definition of “staple fibre” as quoted in paragraph 13, a staple fibre is a fibre of uniform length and denier. Test reports of the samples mentioned at Sl. No. 6, 10, 11, 13, 17, 18, 19, 21 24, 25 27, 30, 31 and 32 of Annexure ‘A’ enclosed to the Collector’s authorisation clearly state that the fibres in the sample were of varying lengths. Paragraph 2(9) of the Order No. 9\/89 (HQ ROA No. 217\/89) dated 24-7-1989 passed by the Collector of Central Excise, Hyderabad under Section 35B(2) of the Central Excises and Salt Act says that:\n<\/p>\n
 “On physical examination of the samples of synthetic waste, it is seen that it is a mixture of staple fibre of different lengths and thickness. The as-sessees have used such synthetic waste to the extent of 48% in the manufacture of disputed yarn as described in the classification lists filed by them.”\n<\/p>\n
The above facts clearly establish that the raw materials used in the disputed yarn were not synthetic staple fibre. Still the chemical examiner, vide his test reports at Annexure ‘B’ to the authorisation, has reported that the yarn contained synthetic staple fibre. Obviously, therefore, his reports are based on mis-conception of the definition of “staple fibre’ and consequently these test reports cannot be reliable basis for determining the classification. The Revenue’s appeal is based on these test reports. The Revenue has not produced any material, except these test reports, to prove that the yarn in dispute contained synthetic staple fibre. On the other hand, the Collector (Appeals) has given convincing reasons to hold the classification of the yarn under Heading 55.05.\n<\/p>\n
16. In the light of the above discussion, classification under Heading 54.06 is ruled out. The yarn also does not fall within the ambit of heading 5504.31 as it is not yarn containing other synthetic staple fibre in the form of waste or in the form of fibre produced out of such wastes, in which acrylic or modacrylic staple fibre predominates by weight. The yarn is rightly classifiable under Heading 55.05.”\n<\/p>\n
10. The classification of cellulosic spun yarn manufactured out of synthetic waste of non-cellulosic origin and cellulosic fibre, in which cellulosic fibre predominates by weight, was decided by the Tribunal in Order Nos. E\/161 to 172\/91-D, dated 25-3-1991 (Collector of Central Excise, Nagpur v. Vardhan Syntex and Ors.)- The Tribunal upheld classification under TI 18-III(i) of the Schedule to the erstwhile C.E.T. In paragraph 12, it was observed that “the burden of the Department’s song is that non-cellulosic waste is nothing but non-cellulosic fibre and, therefore, use of non-cellulosic waste along with viscose would render the final spun yarn classifiable under TI 18-III (ii). We are not able to accept this contention. Waste is a specific entry in the Central Excise Tariff itself. Waste is treated differently both by the legislature as well as in the trade. A wealth of technical literature has been placed before us on what is meant by “staple” and “staple fibre”. At page 409 of Bernard Corbman’s Textiles – Fibre to Fabrics, 5th Edition, it is mentioned that “staple is produced in a wide range of deniers and lengths according to the desired end uses”. “Modern Textiles” by Dorothy Lyle (at page 26) defines staple fibres, natural or man-made as “short lengths measured in inches or a fraction of an inch”. In Kirk Othmer’s Encyclopedia of Chemical Technology, 3rd Edition, Vol.16, staple fibres find a mention at pages 106 and 107 as of  relatively uniform lengths (emphasis supplied). “Staple” is defined at page 29 of the Encyclopedia of Textiles by the Editors of American Fabrics and Fashion Magazines, 3rd Edition as “fibre in short controlled lengths cut from continuous filaments. Yarns spun from it are known as “staple yarn”. The Dictionary of .. Textile terms at page 587 defines “staple” as from Anglo Saxon, meaning fixed, not variable” and staple fibre as “filaments of the cellulosic or man-made groups of fabrics which have been cut to the length of the various natural fibres.” ‘Marjory L. Joseph’s Essentials of Textiles at page 31 says that “man-made staple fibres are short fibres cut to the length required for the processing equipment and they are cut from filaments extruded in large bundles called tow. R.W. Moncrieff’s “Man-Made Fibres” mentions that “chopped up fibre to be called staple fibres and staple fibres are very short nearly always just a few inches and same in length in a bale”. Para 3.2.1 of the ASTM standards (page 92 of the compilation in E\/333\/90-D) clearly stipulates that commercial shipments of staple or Man-made fibre should not include cut waste or short fibres of variable length made by breaking a tow or top.”\n<\/p>\n
11. In para 14, it was observed that “the language of TI 18-III is clear and explicit. What is stipulated under TI 18-III(i) is cellulosic spun yarn not containing any man-made fibres of non-cellulosic origin. Man-made fibres of non-cellulosic origin under TI 18-III means man-made fibres of non-cellulosic origin mentioned in TI 18-I(i). Under TI 18-III(ii) the legislature has clearly stipulated “containing man-made fibres of non-cellulosic origin”. This sub-item can apply only if fibres of non-cellulosic origin mentioned in TI 18-I(i) are blended. It is not the case of the Department that non-cellulosic fibre was the input which was blended with viscose in predominance.”\n<\/p>\n
12. In paragraph 19 it was held that “to equate waste with fibres would be to do violence to the legislative intent. Waste is a well known marketable commodity both of Indian and foreign origin. Non-cellulosic waste is imported regularly. The duty structure both under the Customs and Central Excise Acts is vastly different in respect of non-cellulosic fibres and non-cellulosic waste. Therefore, we are unable to persuade ourselves to equate non-cellulosic waste with non-cellulosic fibres”.\n<\/p>\n
13. Further in paragraph 38 the Tribunal held as follows :\n<\/p>\n
 “If waste is to be first converted into fibre as argued by the learned Departmental Representative, then the entire waste could not be converted into fibre. A part of the waste only could be converted into fibre which could have been blended with cellulosic fibre. There is no mention of any residue waste in the show cause notice or in the orders of the lower authorities. This implies that the entire waste was spun into yarn in those cases. The Department has not produced any evidence to establish that a part of the waste was thrown away and not used for the purpose of spinning yarn by these assessees. This nullifies the stand of the learned Departmental Representative that waste was first converted into fibre for the purpose of spinning yarn”.\n<\/p>\n
14. Thus in the above decisions the Tribunal has made a clear distinction between waste and staple fibres and has held that waste is of varying length and is characterised by absence of homogeneity. The issue, therefore, seems to be clearly covered by the earlier orders of the Tribunal referred to above. The DR’s contention that use of non-cellulosic waste for blending with man-made cellulosic fibre is disputed, is only to to be stated to be rejected in the order dated 21-3-1988 the Assistant Collector, after stating that the identity between the material imported at Bombay and the material used by the factory has not been established has gone on to record “the issues need not be gone into for taking a decision in the matter because their contention is not maintainable on other grounds. During the process of manufacture of fibre, fibre of the standard quality which is fit for blending and spinning straightaway is marketed as fibre. During such process a portion of the fibre of non-uniform staple length is also generated. Such fibre will usually be in a form which cannot be straightaway used for blending with other fibre or spinning without detriment to the quality of the yarn thus made, and such mass of fibre is marketed as waste at a lower price and subjected to a lower rate of duty under Tariff Item 18 IV…. This does not mean that if waste is subjected to careful processing in the blow rooms and careful carding fibre cannot be extracted from the waste. From the fact that the company is able to spin yarn using such waste shows that fibre is generated from the waste and it is this fibre which is used for spinning yarn… it is clear that fibre is coming into existence immediately before the stage of spinning even though to start with the fibre was not present in a form suitable for spinning at which stage it was called waste.” This reasoning of the Assistant Collector is no longer valid in view of the decisions of the Tribunal in Priyadarshini Mills case and Vardhan Syntex case (supra). The Department’s stand that staple fibre can be extracted from the waste does not any longer hold good as it has been held by the Tribunal that there is clear distinction between waste and fibre.\n<\/p>\n
15. Further in the test report dated 14-2-1987 (page 85 of the paper book) the description of the samples as being in the form of lumps of different coloured fibres and heterogeneous mass with cut ends in varying short lengths. Also clearly shows that what was used for blending with cellulosic yarn was “synthetic waste” and not “fibre”.\n<\/p>\n
16. Following the ratio of the judgments in Priyadarshini Spinning Mills and Vardhan Syntex (supra) we hold that the yarn manufactured by the appellants is classifiable under TI 18HI(i) of the Schedule to the erstwhile Central Excise Tariff.\n<\/p>\n
17. In the result we set aside the impugned order and allow the appeal with consequential relief.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Kerala Spinners Ltd. vs Collector Of Central Excise on 24 June, 1991 Equivalent citations: 1991 ECR 522 Tri Delhi, 1992 (57) ELT 301 Tri Del ORDER Jyoti Balasundaram, Member (J) 1. The classification of cellulosic spun yarn manufactured by blending viscose fibre of cellulosic origin (predominant in weight) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-71230","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nKerala Spinners Ltd. vs Collector Of Central Excise on 24 June, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kerala-spinners-ltd-vs-collector-of-central-excise-on-24-june-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kerala Spinners Ltd. vs Collector Of Central Excise on 24 June, 1991 - 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