S.L. Peeran, Member (J)

1. The appellants are aggrieved with the Order-in-Appeal passed by Collector of Customs (Appeals) Madras, rejecting the claim of appellant for classification of the imported item 'Filter Aids and non-woven Filter Panels' technically named SYNFASAN under heading 5911.10 of Customs Tariff Act, 1985. The Department instead has classified the item under heading 5603.30. The importer has paid the duty under protest and filed the refund claim. The Assistant Collector in the Order-in-Original has held that "The sub-heading 59.11 is to be considered with reference to Chapter Note 7 of Chapter 57. The sub-heading 59.11 is applicable to the textile products in the piece, cut to lengths or simply cut to rectangular (including square) shape. The imported goods are in rolls, which have specific shape. Hence, the claim is rejected as inadmissible." The Collector (Appeals) has held that the item is not an article but in running length, and hence its classification would be more appropriate under Heading 56.03.

2. The appellant's contention is that the item has been designed exclusively for technical use and the Department having accepted that the item cannot be put to any use other than technical in nature than in that event the classification is more appropriate under Heading 59.11. It is contended that the note 7 of Chapter 59 includes textile products in the piece as also those cut to particular sizes. Therefore, textile product are also included in Heading 59.11 by virtue of this note 7.

3. We have heard Shri N. Ramanathan, learned consultant for the appellant and Ms J.M.S. Sundaram, learned S.D.R., for the revenue. Shri Ramanathan relied on note 7(b) of Chapter 59 which reads

"(b) Textile articles (other than those of Heading Nos. 59.08 to 59.10) of a kind used for technical purposes [for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos cement), gaskets, washers, polishing discs and other machinery parts)."

Referring to this Note 7(b) Shri Ramanathan pointed out that the item being a Textile article used for technical purpose fitted in the example given in the bracket clearly suggested that textile fabric meant for technical purposes in length fell solely under this Heading 59.11. The explanatory note to H.S.N. at page 776 under Heading 56.03 clearly excluded non-woven fabric for technical use falling under Heading 59.11. The H.S.N. explanatory notes having persuasive value the explanation note given therein has to be accepted. He contended that functional character of the product has to be taken into consideration for the purpose of classification and in this context relied on the ruling rendered in the case of C.C. v. Modern Roofings Ltd., reported in MANU/CE/0017/1989 : 1990 (45) E.L.T. 174 .

4. Smt. J.M.S. Sundaram, learned S.D.R. submitted that Chapter 59 is not appropriate and that the item falls more appropriately under Heading 56.03 of Customs Tariff Act, 1985.

5. We have considered the submissions made by both the sides and perused the records. A similar matter came up for consideration before this Bench before us in the case of Simplex Mills Co. v. Collector of Central Excise in A. Nos. E/753 to 763/91-D and E/2082/91-D and by order No. E/150 to 161/92-D dated 28-2-1992 , the assessees claim for classification of their Industrial fabrics under Chapter 52 was negatived and the Department's claim for classification under Chapter 5909.00 was upheld by applying the Chapter Note 6(b), [The note is identical to note 7(b) of Chapter 59 of Customs Tariff Act]. The Bench has held in para 29 and para 30 as follows :

"29. Therefore, it has to be seen as to whether the products in question falls within Chapters 56 to 59 and in more particular context Chapter 55 which the revenue is seeking to classify. As we have seen Chapter 52 is excluded for the product in question. We have to only see whether it fits in