Commissioner of Central Excise, Mumbai-III v. Amar Fabrics Private Limited Maharashtra
2011-03-17
ANIL R.DAVE, M.K.SHARMA
body2011
DigiLaw.ai
ORDER : M.K. Sharma, Anil R. Dave, JJ. The contention raised by the appellant in the present appeal is that the Customs, Excise and Service Tax Appellate Tribunal (for short "the Tribunal") was not justified in holding that the processing work done by the respondent on embroidery would or could be classified under Sub-Heading 5805.90, as such work carried out by the respondent, should instead be classified under Sub-Heading 5805.19. In support of the said contention, reliance was placed on Notes 5 and 8 of Chapter 58 of the Central Excise Tariff Act, 1985 (for short "the Act"). 2. In Note 5 it is indicated that in Heading 58.05, the expression "embroidery" means, inter alia, as embroidery with metal or glass thread on a visible ground of textile fabric whereas in Note 8, it was stated that in relation to fabrics of the chapter bleaching, mercerising, dyeing, printing, water proofing, shrink proofing, tentering, heat-setting, crease resistance, organdie processing or any other process or any one or more of these processes shall amount to "manufacturing". Relying on the aforesaid notes, it was contended by the appellant that even the process of dyeing and bleaching of embroidery would amount to manufacture and, therefore, excisable under Sub-Heading 5805.19. 3. The specific case of the respondent on the other hand is that the respondent is not carrying out any embroidery work as it receives the embroidery work on which it carries out processing through bleaching, mercerising and dyeing. It was also contended that the aforesaid work of bleaching, mercerising and dyeing is not carried out by the respondent by machinery and, therefore, under any circumstances, it cannot be said that the goods would be classifiable under Central Excise Tariff Heading 58.05. 4. In view of the aforesaid contentions raised the dispute that it required to be resolved is, whether the process of dyeing, bleaching and printing of embroidery or grey fabrics, which is the work carried out by the respondent, would be a process of manufacture and, therefore, classifiable under Sub-Heading 5805.19.
4. In view of the aforesaid contentions raised the dispute that it required to be resolved is, whether the process of dyeing, bleaching and printing of embroidery or grey fabrics, which is the work carried out by the respondent, would be a process of manufacture and, therefore, classifiable under Sub-Heading 5805.19. The aforesaid issue which is required to be resolved and decided has not been decided by the Tribunal effectively with reference to all the relevant provisions as it has only relied on and followed the decision of the larger Bench of the Tribunal in Haren Textiles Ltd. v. CCE, Order No. m/443/wzb/2005/c-11, D/d. 31.1.2005, which held that Note 8 to Chapter 58 of the Act does not apply to processing of embroidery on grey fabrics. We have today set aside the said larger Bench decision of the Tribunal also by a separate order in CCE v. Dore Processors, (2011) 15 SCC 474. 5. As to whether the respondent uses machinery for carrying out its work is the other issue which is not considered and decided by the Tribunal. Since the respondent carries out only the processing work as indicated above on the embroidered fabrics received by it, whether or not the respondent is carrying on any work of embroidery is another issue that is also required to be considered. 6. These are issues which require de novo consideration by the Tribunal in the light of all the relevant provisions of law. All these issues also go to the root of the dispute in question and, therefore, they are required to be considered and decided by the Tribunal. 7. Consequently, we set aside the impugned judgment and order passed by the Tribunal dated 9-8-2005 and remit back the matter to the Tribunal for its de novo consideration of all the issues that arise for consideration afresh in accordance with law.