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Porritts and Spencer (Asia) Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1987)(31)ELT115TriDel
AppellantPorritts and Spencer (Asia) Ltd.
RespondentCollector of Customs
Excerpt:
.....they made an alternative claim for reassessment under item 46(4)(b) as "all other un-manufactured textile materials not otherwise specified". the asstt. collector rejected their claim under item 46(2) on the ground that synthetic polyester contents of the goods varied from 19% to 25% which was not a small or negligible percentage and hence the goods could not be considered raw wool. he rejected the claim under the alternative item 46(4)(b) saying that it was "a fresh ground for refund" and the same was time barred. the appellate collector considered the appellant's claim on merits both under item 46(2) and 46(4)(b) and held that since the goods contained synthetic polyester varying from 19% to 25%, such blended goods could not be classified as un-manufactured textile material under.....
Judgment:
1. The appellants imported special papermaker's wool blended with special papermaker's synthetic polyester. The goods were assessed to Customs Duty under the residuary Item No. 87 of the Indian Customs Tariff then in force at the rate of 60% plus 10% adv. The appellants applied for refund claiming reassessment at 40% plus 5"% adv. under 'item No. 46(2) I.C.T. as "wool, raw, and wooltops". At the time of hearing before the Asstt. Collector, they made an alternative claim for reassessment under Item 46(4)(b) as "all other un-manufactured textile materials not otherwise specified". The Asstt. Collector rejected their claim under Item 46(2) on the ground that synthetic polyester contents of the goods varied from 19% to 25% which was not a small or negligible percentage and hence the goods could not be considered raw wool. He rejected the claim under the alternative Item 46(4)(b) saying that it was "a fresh ground for refund" and the same was time barred. The Appellate Collector considered the appellant's claim on merits both under Item 46(2) and 46(4)(b) and held that since the goods contained synthetic polyester varying from 19% to 25%, such blended goods could not be classified as un-manufactured textile material under either of these two items.

2. At the time of hearing of the appeal before us, the appellants maintained that synthetic polyster content of 19% to 25% was a minor one and the blended fibres retained the predominant character of raw wool assessable under Item 46(2). Alternatively, the goods should be classifiable under Item 46(4)(b) since mixing of two fibres did not result in any manufactured textile material. They added that the amount of refund accruing to them under either of these two Items was the same and when they cited the alternative Item 46(4)(b) before the Asstt.

Collector, they were not making a fresh refund claim as such but were advancing an additional ground for the same refund claim. They relied on this Tribunal's order in the case of Nav Bharat Corporation, New Delhi 1983 E.L.T. 1106 (CEGAT) in which it was held that citing of wrong notification in the original claim and its subsequent correction by citing the correct notification did not convert the claim into a fresh claim and that wrong citation of the tariff item, notification, rule or section can be corrected at any stage so long as the nature and substance of the claim did not change and the appellants did not ask for any higher amount of refund than originally claimed.

3. The department's representative stated that the goods were not raw wool but a blended material. The interpretative rules under the current Customs Tariff Act, 1975 which based classification of composite materials on the basis of predominant or essential character of the goods were not applicable to the erstwhile Indian Customs Tariff. The goods did not, therefore, fall under Item 46(2). The act of blending raw wool with polyester fibre changed the very nature I of the goods and they cannot be considered as un-manufactured textile material under Item 46(4)(b) either.

4. We have carefully considered the matter. We agree with the appellants that there is no bar to consideration of their refund claim on merits under the alternative Item 46(4)(b). In fact, even the Appellate Collector overruled the Asstt. Collector's objection on this score and considered the appellants' claim on merits under the alternative Item 46(4)(b). So far as the merits are concerned, we agree with the department that a blended material containing 19% to 25% of polyester fibre could not be considered as raw wool under Item 46(2).

However, there is force in the appellants' plea for classification of the blended goods under the alternative Item 46(4)(b). Raw wool is a natural fibre of animal origin while polyester is a synthetic or man-made fibre. What the appellants imported was a mixture or blend of these two fibres. It cannot be said that the blended material ceased to be fibre and became a manufactured textile material. As commonly understood, fibre is an un-manufactured textile material. It is really the starting raw material of the textile industry. The goods which the textile industry manufactures out of fibre come in the category of manufactured textile materials, such as yarn, fabrics, garments and other made-up articles of textiles. Since in the present case, the goods imported were nothing but blended fibres only, they remained classifiable as un-manufactured textile material under Item 46(4)(b).

Accordingly, we allow the appellants' claim under this item with consequential relief to them.


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