Customs, Excise and Gold Tribunal - Mumbai
K.K. Interlinings Mfg. Co. Pvt. Ltd. vs Commissioner Of Central Excise, ... on 16 April, 2001
Equivalent citations: 2001(133)ELT665(TRI-MUMBAI)
ORDER
Gowri Shankar, Member (Technical)
1. The order of the Commissioner impugned in this appeal was passed on a notice issued to the appellant, a manufacturer of fabrics alleging that the fabric manufactured by it was stiffened fabric, akin to buckram and hence classifiable under Heading 59.01 of the tariff, and not under Heading 52.06, as cotton fabric. In his order, the Commissioner has confirmed the proposal in the notice, demanded duty and imposed penalty.
2. Paragraph 5 of the notice refers to differential duty on clearances made between 1.7.1987 to 27.4.1991. It goes on to say that the duty for the clearances between March 1989 to 24.7.1991 has already been confirmed by the Assistant Collector in his order D/1/92 dated 27.6.1992 and therefore confines the demand for the remaining period.
3. This order dated 27.6.1992 of the Assistant Collector was set aside by the Commissioner (Appeals) on an appeal by the manufacturer. The Tribunal's order disposing of the appeal filed by the Commissioner against this order is reported in 1998 (102) ELT 174. In that order, the Tribunal had noted that there was no evidence to show that the fabric was coated with gum or amylaceous substances of a kind used for outer covers of books or the like, but noted that the Assistant Collector had said that the fabric has some degree of stiffness and can be put to the use to the same use to which buckram can be used. Citing earlier decisions of the Tribunal to the effect that unless the stiffening is permanent, stiffened fabric cannot be classified under Heading 59.01 (Sunita Textile vs CCE 1993 (67) ELT 932 and others), it had confirmed the order of the collector (Appeals).
4. Since the notice itself proceeds on the basis that the duty is demanded on fabrics which are identical to those adjudicated by the Assistant Collector in his order and which finally came to the subject matter of the Tribunal's decision, the ratio of that decision would apply to the fabrics in question. The goods therefore cannot be said to be stiffened fabric classifiable under Heading 59.01.
5. The view expressed by the Commissioner in his order, that for fabric to be classifiable under Heading 59.01, it need not have permanent stiffness is obviously erroneous. In the absence of such durable stiffness, such fabrics cannot be put to the use for which this stiffness has been emerged. We repeatedly invited the departmental representative to show us the material on the basis of which the Commissioner says that the records show that the stiffness is not lost on washing the fabrics with ordinary water or warm water, contrary to the test reports cited by the counsel for the appellant which indicate that the fabric looses all stiffness on washing. He was unable to do so. The manufacturer's claim for classification of the fabrics under heading 52.06 has therefore to be accepted.
6. Appeal allowed. Impugned order set aside.