COMMISSIONER OF CENTRAL EXCISE, HYDERABAD-IversusM/S. CHARMINAR NON-WOVENS LTD.

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

                 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
-       'y   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
    206    SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

                                                                                  -----
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 passed by the Commissioner (Appeals) and in the                      I          ..._
                                                                                    ,
  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.

H
           COMMNR. OF CENTRAL EXCISE, HYDERABAD-I v.               207
                CHARMINAR NON-WOVENS LTD.
                             Case Law Reference:                           A
t.

.
'          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 PELLATE 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.                        D

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

            The Judgment of the Court was delivered by
                                                                           E
             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              B
            Commissioner of Customs and Central Excise (Appeals),
            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 sub-
           heading 5703.20. The appellate authority also noted that the
           said carpet was physically examined by the adjudicating
                                                                               c
           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
           concurrent finding that the goods in question were correctly        D
           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.       H
    210 SUPREME COURT REPORTS (2009) 14 (ADDL.) S.C.R.


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

    8.8.8.                                       Appeal dismissed.