RAJASTHAN SYNTHETIC INDUSTRIES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) The petitioners have filed revised classification list w.e.f. 1-6-1990 claiming that classification of HDPE/PP tapes fall under Chapter 39 sub-heading No. 3923.90 of Central Excise Tariff Act, 1985 as articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics. However, the Excise Authorities have opined that as per correct classification HDPE/woven sacks fell under Chapter 63, sub- heading Nos. 63.01 and 63.05 on the ground that sacks in question are manufactured out of HDPE/PP tapes exceeding 5 mm width whereas the sacks manufactured out of HDPE/PP articles manufactured not exceeding 5 mm of width are classified under Chapter 54 sub-heading 5406.90. Likewise for other commodities namely HDPE/PP tapes, HDPE/PP fabrics and HDPE/woven sacks, the assessee claimed that under Chapter 33 of the Central Excise Act applies and products are classified under different sub-heads, the excise authorities claimed it to be classified under different heads of Chapter 63. Further it is the case of the Revenue that since in respect of all the commodities falling under Chapter 63, no Modvat credit is available, the Modvat credit availed by the petitioner in respect of the aforesaid commodities may be recalled.

(3.) It is pointed out by the learned Counsel for the parties that the issue has earlier been considered by the Division Bench of this Court in D.B. Civil Writ Petition No. 3691/1989, Kandhari and Kandari Pvt. Ltd. V/s. Union of India decided on 16-1-2002 which related to the HDPE/PP tapes, HDPE/PP fabrics not exceeding in width 5 mm and falling under Chapter 39 as per Revenue whereas in the present case for the like reason on the basis of tapes used in manufacture of HDPE/PP commodities fall under Chapter 63, the controversy remains the same. In Kandhari and Kandari's case, the Court noticed that the claim of the assessee was founded on the decision of the Madhya Pradesh High Court in M/s. Raj. Pack Well Ltd., Indore & Other v Union of India and others (Miscellaneous Petition No. 1205/88 decided on 7-11-1989) and a decision of the Karnataka High Court in Writ Petition No. 9525 and other petitions of 1990, 1991 and 1992 decided on 23rd July, 1993 [2004 (174) E.L.T. 431 (Kar)].