COMMISSIONER OF CENTRAL EXCISE Vs. BIRLA VXL LIMITED

JUDGEMENT

(1.) REVENUE has filed these appeals being aggrieved by the order passed by the learned Commissioner (Appeals) holding that the appellant has declared polyester/Acrylic/other Artifical Tops under Chapter sub -heading 5501.20, 5501.30, 5501.90 and had held that since all the 3 products viz. fibre, tow and tops are classifiable under the same sub -heading and in effect there was no distinction between tow and fibre and there has been substantial compliance insofar as these products are concerned.

(2.) ARGUING the case, Shri M. M. Dubey, learned Departmental Representative submits that fibre, tow and tops are 3 different products known to the market and traded by different names. He submits that the respondents herein had declared their products as polyester tops whereas they had taken credit of countervailing duty paid on the product described as polyester tow. He submits that for the purpose of Modvat credit a correct declaration of the item used as input is essential. He submits that since the correct declaration was not given by the respondents, therefore the Assistant Commissioner had rightly held that Modvat credit will not be admissible to the respondents herein. He submits that the fact that fibre tow and tops figured under the same item but carry different meaning. He, therefore, prays that in view of the fact that fibre, tow and tops are different products, therefore, the declaration was wrong and that the learned Commissioner (Appeals) had wrongly allowed the appeal of the respondents herein.

(3.) SHRI R. Sudhinder, learned Counsel appearing for the respondents herein submits that fibre, tow and tops are 3 different forms of fibre only. He submits that the respondents herein imported tow, got it converted into tops by jobworkers, gave the declaration of the goods as tops and availed credit of duty paid as countervailing duty in terms of Rule 57A of the Central Excise Rules, 1944. He submits that fibre, tow and tops are classifiable under the same Chapter sub -heading. He submits that the Notification specifies the modvatable goods only by Chapter heading; that even according to the Chapter description, since all the 3 items i.e. fibre, tow and tops fall under the same Chapter sub -heading, credit of duty could be taken. Once the Chapter sub -heading is given, the particular mention of fibre, tow or top becomes insignificant. He submits that their case is fully covered by the decision of this Tribunal in the case of Raymonds Limited v. C.C.E., Mumbai reported in 1998 (99) E.L.T. 545. He submits that the Tribunal in this case held, "we are, therefore, inclined to accept the contention of the appellant that in the context of the Heading, there was in fact no distinction between tow and fibre and particularly in view of the fact that all three products fibre, tow and tops would be classifiable under the same sub -heading (based upon the origin) and that there has been substantial compliance so far as these products are concerned." He, therefore, prays that there was no legal infirmity or otherwise in the impugned order and, prays therefore, that the appeals may be rejected.