Page 174 - ELT_3rd_1st May 2020_Vol 372_Part

396 EXCISE LAW TIMES [ Vol. 372

thetic textile material of an apparent width not exceeding 5 mm. This heading
had two single ‘_’. One refers to monofilament yarn and the second ‘others’.
Chemical Examiner has given a report that it is a multifilament yarn. The mo-
ment the yarn is of multifilament nature, it goes out of Heading 5402. Therefore,
as far as the tariff entries till 2004-05 are concerned, the assessee’s contention of
classification under 5404.90 cannot be accepted. From 2005-06 also, the heading
remains of synthetic monofilament yarn of 67 decitex or more. Therefore, from
2005-06 the Heading is not applicable to the appellants on the basis of the Chem-
ical Examiners report. However, the Learned Counsel for the appellant contend-
ed that the Chemical Examiner has concluded that the yarn manufactured by the
appellants is multifilament yarn on the basis of visual examination. The Chemi-
cal Examiner, during the course of cross-examination, has reiterated that multi-
filament nature of the yarn can be ascertained on the basis of visual examination.
Being a Technical Expert and having an experience of testing the samples of
yarns and fabrics, his report cannot be brushed aside. Therefore, we conclude
that the impugned goods cannot be classified under 5404. Coming to the claim of
the department that the impugned goods fall under 5402.39/540259.10, we find
that whereas 5404 has no place for multifilament yarn, 5402 has an inclusive def-
inition. Till 2004-05, 5402 covered synthetic filament yarn (other than sewing
thread), including synthetic monofilament yarn of less than 60 d. The Heading
has three single dash (‘_’) i.e., high tenacity yarn of nylon or other polyamides,
high tenacity yarn of polyesters and textured yarn. Revenue wishes to classify
the impugned goods under 5402.39 till 2005. However, for the goods to fall under
5402.39, they should be textured yarn. However, we find that from 2005-06, the
scope of 5402 has been expanded to contain 5 single dash (‘_’) i.e., high tenacity
yarn of nylon or other polyamides, high tenacity of polyesters, textured yarn,
other yarn, single, untwisted or with a twist not exceeding 50 turns per meter,
other yarn, single with a twist exceeding 50 turns per meter and other yarn, mul-
tiple (folded) or cabled. Department attempts to classify the impugned goods
under 5402 59 10 from 2005-06 onwards. However, this sub-heading falls under
single dash (‘_’) pertaining to other yarn, single, with a twist exceeding 50 turns
per metre. Ongoing through the Chemical Examiner’s Report, we find that it is a
multifilament yarn. The Heading for 5402 51 includes other yarn, single, with a
twist exceeds 50 turns per metre. It does not, however, include multifilament
yarn and there is no doubt that the impugned goods are yarn and are of poly-
propylene, therefore, the impugned goods merit classification under 5402 59 10
from 2005-06. However, as the DGCEI has visited the premises and got the test
conducted on 29-9-2006, the classification can be taken from the new tariff for the
reasons discussed hereunder.
6.2 The Learned Counsel for the appellants submits that assuming but
not accepting that the Chemical Examiner’s report 29-9-2006, the same can be
applied only prospectively but not retrospectively. The Learned Counsel has re-
lied upon catena of judgments. We find that the Tribunal in the case of Pattani
Chemicals (supra) has held that test results could have only prospective applica-
tion. We find that this contention is acceptable. The appellants have registered
themselves with the department before 2003 itself and have surrendered the reg-
istration on the basis of the test report given by Textile Committee at the behest
of the department itself. That being a case, we find that the results of the test re-
ports are to be applied prospectively only. Further, we find that Learned Counsel
for the appellants has submits that as the department is totally aware of the activ-
EXCISE LAW TIMES  1st May 2020  174