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[2009] 14 (ADDL.) S.C.R. 205

COMMISSIONER OF CENTRAL EXCISE, HYDERABAD-I A v.

M/S. CHARMINAR NON-WOVENS LTD.

(Civil Appeal No. 3828 of 2007)

SEPTEMBER 8, 2009

[D.K. JAIN AND ASOK KUMAR GANGULY, JJ.] B

Central Excise and Salt Act, 1944 - s.35L - Interference under - Scope - Classification of carpets - Authorities below upheld assessee's claim for classification - On appeal, held: C Decision rendered by authorities below was based on relevant materials/evidence on record as also Section Notes and Chapter Notes - Concurrent findings of fact by authorities below not patently perverse nor based on manifest misreading of any legal provision - Hence, interference by D Supreme Court not called for- Central Excise Tariff Act, 1985

- Headings 5703.20 & 5703.90.

Assessee-respondent is a manufacturer of carpets.

Show-cause notice was issued to it alleging that it mis- E classified its carpets under Heading 5703.20 as "jute carpets" and thereby mis-utilized the benefit of Notification No.29195-CE dt. 16-3-95 and 16196-CE dt. 23- 7-1996 by clearing the same at concessional rate of duty.

The adjudicating authority i.e. the Addi. Commissioner of Central Excise came to a finding that in the said carpets, F there was predominance of jute content by weight and accordingly upheld the assessee's claim for classification and consequently the show-cause proceedings were dropped. The order passed by the adjudicating authority was upheld by the appellate authority i.e. the G Commissioner (Appeals) as well as the Tribunal. Hence the present appeal.

Dismissing the appeal, the Court

205 H

----- A HELD:1.1. When the Revenue took the appeal up to )._ Tribunal, the Tribunal held that the issue was covered by the decision in Champdany Industries Ltd. The appeal filed against the same decision rendered in the Champdany Industries has been dealt with by this Court in the case in B Civil Appeal Nos.7075-7076 of 2005. In that judgment, all

the issues raised by the Revenue were discussed in detail and thereafter, the contentions of the Revenue were rejected. following the same parity of reason, contentions

)...

of the Revenue, which are identical in this case, are also c rejected. [Paras 7 and 8] (209-F-H]

1.2. Apart from that, in this matter the Revenue's case has been constantly rejected at all the three levels, namely, in the adjudication order passed by the Addi.

Commissioner of Central Excise, in the appellate order ---,' D

I passed by the Commissioner (Appeals) and in the ..._ , Tribunal. Such decisions have been rendered on the basis of the relevant materials and after analyzing the evidence on record as also the provision of Section Notes and Chapter Notes. Such concurrent findings by the E lower authorities are interfered with by this Court in exercise of its jurisdiction under Section 35L of Central Excise and Salt Act, 1944 only when such findings are ,) patently perverse or are based on manifest misreading of any legal provision. Here none of these situations is F present. [Para 8] [210-A-C]

Sidharath Pharmaceuticals v. Collector of Central Excise, Ahmedabad 2003 (157) ELT 502 (SC) and Auto Control (P) Ltd. v. Collector 2006 (199) ELT A.127, relied on.

G Uni Products (I) Ltd. v. Commissioner of Central Excise 2006(200) ELT 278 (Tri.-Delhi) and Commissioner of Central ExciseBBSR-1 v. Champdany Industries Limited 2006 (193) ELT 295 (Tri.-Kolkata), referred to.

t. ' .

...

COMMNR. OF CENTRAL EXCISE, HYDERABAD-I v. 207

CHARMINAR NON-WOVENS LTD.

Case Law Reference:

2006 (200) ELT 278 (Tri.-Delhi) referred to Para 5

2006 (193) ELT 295 (Tri.- Kolkata) referred to Para 7 \

I 2003 (157) ELT 502 (SC) relied on ' Para 9 8

2006 (199) ELT A.127 relied on Para 10

CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 3828 of 2007.

From the Judgment & Order dated 4.1.2007 of the C Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore in Appeal No. -E/938/2006.

P.P. Malhotra, ASG, Madhurima Tatia, S.K. Dubey, V.

Dalmia, B. Krishna Prasad for the Appellant.

S.K. Bagaria, S. Sukumaran, Meera Mathur, Anand Sukumar, Rajesh, P.K. Mahapatra for the Respondents.

The Judgment of the Court was delivered by

GANGULY, J. 1. In this appeal filed by the Revenue, the issue is whether non-woven carpets having exposed surface

of polypropylene are classifiable under heading 5703.20 as "jute carpet" to justify concessional rate of duty or whether the said non-woven carpets are classifiable under heading 5703.90 F as "other carpets".

2. It is not in dispute that the period which is involved in this case is between April, 1996 to October, 1996.

3. The show-cause notice was issued by the Revenue G against the respondent on 6.11.1996 alleging the respondent's a case of mis-classification of carpets under heading 5703.20 and thereby mis-utilization of the benefit of Notification No.29/ 95-CE dated 16.3.95 and 16/96-CE dated 23.7.1996 and thus clearing the goods at concessional rate of duty of 5%. The H

COMMNR. OF CENTRAL EXCISE, HYDERABAD-Iv. CHARMINAR 209

NON-WOVENS LTD. [ASOK KUMAR GANGULY, J.]

, the same which was followed in the case of Uni Products A

(supra) and accordingly the show-cause proceedings were dropped against the assessee by an order dated 29.11.2004.

6. Against the said order, an appeal was filed by the Revenue and the said appeal came to be decided by the Commissioner of Customs and Central Excise (Appeals), B

Hyderabad. In the course of hearing of the appeal, the appellate authority noted why the adjudication authority decided that the classification of the product in question should be under subheading 5703.20. The appellate authority also noted that the c said carpet was physically examined by the adjudicating

authority, and after doing so, the adjudicating authority came to a finding that floor covering was neither piled nor looped, rather the goods were manufactured by needle punching

~ process. The adjudicating authority, therefore, came to a D concurrent finding that the goods in question were correctly classified under chapter sub-heading 5703.20 and are not to be classified under "other" under chapter sub-heading No. 5703.90. The appellate authority also held that the decision of CESTAT in the case of Uni Products (supra) is applicable in the facts of the case. With the said finding, the appellate E

... authority rejected the appeal of the Revenue .

7. When the Revenue further took the appeal up to Tribunal, the Tribunal referred to its decision in the case of Commissioner of Central Excise, BBSR-1 vs. Champdany F Industries Limited - 2006 (193) ELT 295 (Tri.-Kolkata), and held that the issue is covered by the decision in Champdany Industries (supra). The appeal filed against the same decision rendered in the Champdany Industries (supra) has been dealt with by this Court in the case in Civil Appeal Nos. 7075-7076 G

""( of 2005. In that judgment, all the issues raised by the Revenue have been discussed in detail. After such detailed discussion, the contentions of the Revenue have been rejected.

8. Following the same parity of reason contentions of the Revenue, which are identical in this case, are also rejected.

A Apart from that, it appears that in this matter the Revenue's ..... case has been constantly rejected at all the three levels, namely, in the adjudication order passed by the Addi. Commissioner of Central Excise, in the appellate order passed by the Commissioner (Appeals) and in the Tribunal. Such decisions B have been rendered on the basis of the relevant materials and after analyzing the evidence on record as also the provision of Section Notes and Chapter Notes. Such concurrent findings by the lower authorities are interfered with by this Court in exercise of its jurisdiction under Section 35L of Central Excise and .Salt c Act, 1944 only when such findings are patently perverse or are based on manifest misreading of any legal provision. Here none of these situations is present. ...

9. Reference in this connection may be made to the decision of Sidharath Pharmaceuticals vs. Collector of Central D Excise, Ahmedabad - 2003 (157) ELT 502 (SC). In that

-t

judgment, the learned Judges of this/Court held that with the concurrent finding of facts reached by lower authorities in classification on the basis of evidence and on analysis of relevant legal provision interference is not called for by this Court E in exercise of its power under Section 35L of the Central Excise Act, 1944.

10. Similarly, in the case of Auto Control (P) Ltd. vs.

Collector, quoted in 2006 (199) ELT A.127, this Court held F where there is a concurrent finding of fact by the authorities

below in support of respondents claim for classification normally this Court does not interfere with such concurrent findings.

11. In view of the aforesaid settled law, this Court does not

G find any merit in the appeal filed by the Revenue. The Revenue's appeal is thus dismissed. However, there is no order as to costs.

8.8.8.

Appeal dismissed.