Case: Sarla Performance Fibers Ltd Vs. C.C.E.C.,Vapi

yarn of chapter 50 to 55 but may be distinguished from them by the characteristic of gimped yarn that the core does not itself undergo a twisting with the cover threads. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held on place by binder or tie yarn. The manufacture requires two distinct twisting operation after the yarn is first made, it is twisted opposite direction to establish the desired effect. It may have the loops formed by a very soft and slackly twisted yarn. These yarns falls under Chapter Heading 56.06 of the Tariff as special yarns. In view of the above, and in view of the fact that the yarn forming the loop is not wrapped around the core yarn is not held in place by a binder or the tie yarn like in gimped yarn and loops are not formed by twisted yarn. These yarns viz. Polyester/Nylon covered yarn can not fall under Chapter heading 56.06 of the Central Excise Tariff Act, 1985.8. It therefore appears that Air mingled yarns manufactured by M/s. Sarla Polyester Ltd. comprise a Polyester Yarn (Polyester) or Nylon Yarn (Polyamide) air mingled with Lycra/Spandex (polyurethane). The assessee using lycra or spandex as core yarn and covering the same with polyester or nylon yarn, a non elastic multi filament yarn of Polyester/Nylon is fed through an air jet with stretched lycra/spandex. In the air jet, due to compressed air, the filaments of polyester/nylon get intermingled with that of Lycra/Spandex. The resulting yarn would therefore merit classification based on the principle of pre-dominance of textile material used. Since the air mingled yarn contain more polyester or nylon by weight vis-a-vis Lycra/Spandex such yarns merit classification under Chapter Sub Heading No. 5402.61 or 5402.62 as Synthetic Filament Yarn of Nylon or Polyester respectively. This classification is decided by virtue of Section Note 2(A) to section XI covering chapter 50 to 63 of the first schedule to Central Excise Tariff Act, 1985. Since M/s. Sarla Polyester Ltd., Silvassa are having intermingling machinery at their manufacturing unit, they are adopting the intermingling/interlacing process for covering lycra/spandex. Further the unit does not have facility to manufacture spun yarn and cannot manufacture crimped yarn. The unit has the air mingling machinery capable of producing air mingled yarn only. Therefore yarn manufactured by them cannot be classified Crimped Yarn under CH. Heading no.56.06 of CET. The interlaced/intermingled yarn manufactured by undertaking air mingling operation is to be classified by resorting to section note 2(a) to section XI i.e. by principle of pre-dominance of textile material used. The goods manufactured by M/s. Sarla Polyester Ltd. would therefore fall under chapter Heading no.5402.61 and 5402.62 as Nylon and Polyester respectively predominate in weight over lycra/spandex." 14. In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle of pre-dominance of textile material used. The Order-in-Original was passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue. Contention of the assessees that the product should be covered under Chapter Heading 56.06 was turned down by the Assessing Officer in the following manner: "28. The assessee has claimed the classification of their covering yarn manufactured by way of attachment by applying pressurized air in Air Jet machine under Chapter Sub-heading 56.06 of Central Excise Tariff. Accordingly, on perusal of said entry in Central Excise tariff, it is seen that Chapter Sub-heading No. 56.06 covered gimped yarn, and strop and the like of heading No. 54.04 or 54.05, gimped (other than those of Heading No.56.05 and gimped horse hair); chenille yarn (including flock chenille yarn); lop wale yarn.Since the assessee has claimed polyester and Nylon covering yarn as gimped yarn under Chapter Sub-heading 56.06 of Central Excise Tariff, it may be mentioned here that as per the Explanatory Notes to HSN, Gimped yarn are composed of core, usually of one or more textile yarns, around which other yarns are wound spirally. In gimped yarn, the yarn forming the loop is wrapped around the core yarn and is held in place by binder or tie yarn. However as per the test report of MANTRA, Surat, which has not been challenged or disputed by the assessee, the polyester or Nylon yarn did not wound spirally and even did not wrapped around the Lycra/Spandex (elastoemeric) yarn or it was not held in place by a binder or tie yarn. It was merely attached with each other due to pressurized air by way of technique of intermingling. Therefore the yarns in question cannot be said to be composed of core of yarns. And as such it is not gimped yarn." 15. The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before us.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]13. At the outset, it may be pointed out that there is no dispute that two yarns are used in the manufacture of the product, namely, Nylon and Lycra. At the same time, however, it is also an admitted fact that in Polyester Covered Yarn, the percentage of Lycra is only nine to ten and it is Polyester/Nylon which isused ranging from 91% to 93%. Taking note of these facts and definition of gimped yarn in Explanation (A) to Chapter Heading 56.00 under Section XI of Explanatory note to HSN, it was stated in the show cause notice that the product could not be treated as gimped yarn.In nutshell, having regard to the use of Nylon and Lycra in the ratio of 90:10, the classification was proposed on the principle ofof textile material used. Thewas passed by the Assessing Authority, taking note of the dominance of Polyester or Nylon yarn in the manufacturing of the said product. The Assessing Authority also referred to tests reports from Man Made Textile Research Association (MANTRA) which also supported the version of the Revenue.The Appellate Authority while affirming the order of the Assessing Officer also referred to Rule 3(a) of the Rules of Interpretation as per which the heading which provides the most specific description is to be preferred to the heading providing a more general description. The Tribunal has revisited the entire issue taking into consideration all the aspects of the matter and in the light of tests reports of MANTRA, affirmed the findings of the Authorities below that the products manufactured by assessees are nothing but air mingled yarn and, therefore, cannot be classified under Chapter No. 56 in view of the fact that it does not contain a core around which another yarn has been woven. Thus, a categorical finding is arrived at that the core does not itself undergo twisting with covered threads. On the basis of the aforesaid concurrent finding of the Authorities below rejecting the contentions of the assessees that the product in question was a gimped yarn, supported with cogent and valid reasons, we do not find any merit in any of the contentions raised by the appellants before