VESTERGAARD FRANDSEN INDIA (P) Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal filed by M/s. Vestergaard Frandsen India (P) Ltd. on the ground that the goods imported by them vide Bill of Entry (No. 153011 dated 18.11.01 and 152929 dated 3.11.01) were Netting fabrics and therefore, rightly classified under 6002.43 and not under 58.04 as determined by the departmental authorities. Both these tariff entries are reproduced for convenience: 60.02 Other knitted or crocheted fabrics 6002.10 -Of a width not exceeding 30cm, containing by weight 5% or more of elastomeric yarn or rubber thread 6002.20 -Other, of a width not exceeding 30 cm 6002.30 -Of a width exceeding 30 cm, containing by weight 5% or more of elastomeric yarn or rubber thread" -Other fabrics, warp knit (including those made on galloon knitting machines): 6002.41 - -Of wool or fine animal hair 6002.42 - -Of cotton 6002.43 - -Of man -made fibres 6002.49 - -Other -Other 6002.91 -Of Wool or fine animal hair 6002.92 -Of cotton 6002.93 -Of man -made fibres 6002.99 - -Other _______________________________________________________________________ 58.04 Tulles and other net fabrics, not including woven, knitted or crocheted fabrics; lace in the piece, in strips or in motifs, other than fabrics of Heading No. 60.02 5804.10 - Tulles and other net fabrics

(2.) FROM the order in original passed by the Assistant Commissioner of Customs, it is apparent that the goods were declared as "Netting fabric" in one bill of entry and as knitted fabrics in another bill of entry. When the matter was referred to CRCL, New Delhi, by the departmental authorities in respect of one bill of entry, the reference was made, inter alia to ascertain whether the sample was netted fabrics. In respect of other reference no such specific requirement relating to structure of fabric whether the sample was knitted or otherwise was made. In the result, the Chemical examiners report obtained was silent whether the sample was knitted or otherwise. However, the report obtained from the Chemical examiner bears a new terminology i.e. 'netted fabrics' which does not appear to exist over any tariff or in trade nomenclature. In the eventuality, the learned Asstt. Commissioner in his order in original has accepted this terminology and concluded that the material was classifiable under 5804.10 as netted fabrics other than knitted or woven fabrics.

(3.) AGGRIEVED by the said decision when the appellants approached the Commissioner (Appeals), he observed as follows: It is seen that Chapter 58 relates to special woven fabrics, tufted textile fabric etc. and chapter 60 is for knitted or crocheted fabrics. It is observed that certain special woven fabrics, irrespective of the nature of fibres have been specifically mentioned in Chapter 58 and therefore, they merit to be classified accordingly on the principle that a specific provision of law would prevail over the general one. Tariff entry 5804 excludes woven knitted or crocheted fabrics. Therefore, the appellant's contention that the impugned netting fabrics being knitted in nature would fall outside the purview of CTH 5804 appears logical. But considering the principle of harmonious construction, the scope of a specific entry for net fabric should prevail over the general entry in chapter 60 which covers all type of knitted or crocheted fabrics. It is further noticed that the Tribunal in the case of Mehta Netting (P) Ltd. 1990 (50) ELT 316 has already settled the classification of net fabrics and has held that net fabrics is appropriately classifiable under CTH 5804. It was only on the basis of this decision that Madhya Pradesh Collectorate had issued a trade notice No. 77/91 dated 28.8.91 and had clarified that such mosquito netting fabrics was appropriately classifiable under 58.04 of CETH 1985. Further, contrary to the contention of the appellant, it is observed that the Supreme Court, Mobile deciding impugned products; rather they were addressing the issue of Rule 96 MMM of Central Excise Rules, 1944. Therefore, it is erroneous to say that the classification determined by the Cegat of netting fabrics has been set aside by the Supreme Court.