Customs, Excise and Gold Tribunal - Delhi
Pasupati Spg. And Wvg. Mills Ltd. vs Commissioner Of C. Ex. on 8 June, 2000
Equivalent citations: 2000(121)ELT438(TRI-DEL)
ORDER Lajja Ram, Member (T)
1. M/s. Pasupati Spinning and Weaving Mills (hereinafter referred to as 'M/s. Pasupati'), were holding central excise licence since 1981 for the manufacture of yarn classifiable under Item No. 18 of the erstwhile Central Excise Tariff (hereinafter referred to as the Tariff). During the period June, 1983 to March, 1984, they were using man made crimped fibres of non-cellulosic origin in the manufacture of their yarn, which they declared as the yarn not containing any fibre of noncellulosic origin. It was alleged in the show cause notice dated 17-12-1986 issued by the Collector of Central Excise, Delhi that M/s. Pasupati had misclassified, by mis-stating the fact regarding the nature of raw materials used, their yarn containing man made fibres of non-cellulosic origin under Item No. 18-III(i) of the Tariff, while the correct classification of such yarn was under Item No. 18-III(ii) of the said Tariff. Alleging suppression of facts, extended period of limitation was invoked. The Collector of Central Excise, Delhi under his Order-in-Original dated 9-12-1992 after making a reference to the test reports, of the samples drawn, by the Chemical Examiner, Central Excise, Central Revenue Control Laboratory, New Delhi held that the yarn manufactured by M/s. Pasupati was containing man made fibres of non-cellulosic origin and thus, was correctly classifiable under Item No. 18-III(ii) of the Tariff. He also held that as the assessee had suppressed the facts from the Department, extended period of limitation has been correctly invoked. He confirmed the demand of Rs. 9,48,638.15 and imposed a penalty of Rs. 1,00,000/-.
2. The matter was heard on 16-5-2000 when Shri D. Dave, Sr. Advocate with Shri Gopal Prasad, Advocate appeared for the appellants. He submitted that the appellants were not pressing the issue regarding the limitation and were arguing only on merits. The yarn in question contained cellulosic fibre, and the polyester waste, and the polyester waste was not the same as polyester fibre. The matter relates to the old Central Excise Tariff and the issue for consideration is whether such yarn was classifiable under Item No. 18-III(i) or Item No. 18-III(ii) of the said Tariff. The Id. Sr. Advocate submitted that the matter is covered by the Tribunal's decisions and also referred to the Supreme Court's decision in the case of Collector of Central Excise, Hyderabad v. Priyadarshini Spg. Mills Ltd. -1997 (94) E.L.T. 287 (S.C).
Shri R.S. Sangia, JDR submitted in reply that in the present case there are specific chemical reports establishing that what was contained in the yarn was not waste but fibres of non-cellulosic origin. The chemical reports categorically proved that the raw material was fibre. Opportunity was given to the appellants to cross examine the chemical examiner. The order is based on facts and that the case law referred to by the Id. Sr. Advocate was distinguishable.
3. We have carefully considered the matter. Before embarking upon the study at hand, we take note of the following facts :-
(1) We are dealing with the erstwhile Central Excise Tariff.
(2) We are dealing with the interpretation of the Tariff Entry.
(3) For consideration is the classification of spun yarn.
(4) There is no definition of fibre in the Tariff.
(5) There are categorical reports on test of the yarn in dispute that they contained man made fibres of non-cellulosic origin.
4. The issue for our consideration is whether the spun yarn manufactured by M/s. Pasupati was classifiable under Item No. 18-III(i) or Item No. 18-III(ii) of the Tariff. Item No. 18-III(i) covered the cellulosic spun yarn not containing any man made fibres of non-cellulosic origin. Item No. 18-III(ii) covered the cellulosic spun yarn containing man made fibres of noncellulosic origin. Rate of central excise duty under Item No. 18-III(i) was considerably lower than the rate of duty under Item No. 18-III(ii) of the Tariff.
5. Let us understand as what is yarn particularly spun yarn. We start with the Hon'ble Supreme Court. The Apex Court in the case of Commissioner of Sales Tax, U.P. v. Sarin Textile Mills (35) STC 634 (SC), after making a reference to the definitions of yarn in Oxford Dictionary and Websters New World Dictionary, held that a fibre in order to answer the description of yarn in the ordinary commercial sense must have two characteristics; firstly it should be a spun strand; secondly such strand should be primarily meant for use in weaving, knitting or rope making.
In the Fair Child's Dictionary of Textiles Vlth Edition by Dr. Isabel B. Wingate as per 682, it has been explained that yarn is a continuous strand of textile fibres falling into two basic classes - spun yarn and continuous filament yarn. Spun yarn is an assemblage of relatively short fibres while continuous filament yarn is a grouping of virtually endless parallel continuous filaments. With virtually all spun yarn except those made on the woollen system, the objective is to have the fibres well distributed even and parallel. In general, when producing spun yarns, the fibres are opened and distributed by means of the carding operation. They are attenuated and doubled so as to promote greater eveness and finally spun to the desired size with the proper amount of twist.
The new shorter Oxford English Dictionary defines yarn at page 3743 as fibre prepared for use in weaving, knitting, the manufacture of sewing thread, etc. According to the Websters New World Dictionary, yarn is any fibre as wool, silk, flax, cotton, nylon, etc. spun into strands for weaving, knitting or making thread.
6. From all accounts, it is clear that spun yarn is a product obtained by spinning of the fibres. Man made fibres are those fibres that are manufactured, as opposed to those fibres that grow in nature, which are called natural fibres.
In the Fair Child's Dictionary of Textiles, fibres are defined at page 232 as fibres that can be spun into a yarn or made into a fabric by interlacing in a variety of methods, including weaving, knitting, braiding, felting and twisting. Man made fibres (at page 372) include those filaments (fibres) that are manufactured as opposed to those fibres that grow in nature (natural).
7. In the case of wastes arising in or in relation to the manufacture of man made fibres and man made filament yarns, the manufacturing process of polymerisation or condensation of organic monomers had already been undertaken when the man made fibres were originally obtained. Such waste is just to the processed to again obtain fibres fit for spinning.
Waste which were used in the manufacture of man made fibres by the process of recycling of such waste enjoyed exemption under Notification No. 43/80-C.E., dated 24-4-1980 which is extracted below :-
" In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts wastes falling under sub-item No. IV of Item No. 18 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from the whole of the duty of excise leviable thereon, if such wastes are used in the manufacture of man made fibres falling under sub-item I of the said Item 18 by the process of re cycling of such wastes:
Provided that where such use is in a factory other than the factory of production of such wastes, the procedure set out in Chapter X of the Central Excise Rules, 1944 is followed."
Man made fibres manufactured exclusively out of wastes by processes like garnetting, combing, carding and gilling which did not involve recycling of such wastes, enjoyed full exemption from duty under Notification No. 44/80-C.E., dated 24-4-1980 which is extracted below :-
" In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts man-made fibres and tops falling under sub-item I of Item No. 18 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from the whole of the duty of excise leviable thereon :
Provided that -
(a) such fibres and tops are manufactured exclusively out of wastes falling under sub-item IV of the said Item No. 18 and on which appropriate duty of excise has already been paid;
(b) such fibres and tops are manufactured from such wastes by processes, like garnetting, combing, carding and gilling which do not involve recycling of any such wastes."
Further, concessional rate of duty was provided when polyester fibre was manufactured by the process of re-cycling of wastes in India under Notification No. 46/85-C.E., dated 17-3-1985, which is extracted below :-
" In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, read with sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Govt. hereby exempts polyester fibre, falling under sub-item (I) of Item No. 18 of the First schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon under the said Acts, as is in excess of the amount calculated at the rate of thirty-three rupees and seventy five paise per kilogram :
Provided that such polyester fibre has been manufactured from wastes, falling under sub-item IV of the said Item No. 18, by the process of re-cycling of such wastes in India :
Provided further that the amount of duty so levied shall be apportioned in the ratio of 110:15 between the duty leviable under the Central Excises and Salt Act, 1944 (1 of 1944), and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), respectively.
2. This notification shall remain in force up to and inclusive of the 28th day of Feb., 1986."
8. From the above provisions of law, it is clear that the wastes arising in or in relation to the manufacture of man made fibres and man made filament yarns are converted into fibres by processes like garnetting, combing, carding, gilling, etc. (refer Item No. 44/80-C.E., dated 24-4-1980) before such fibres are spun into yarn. It is also clear from the definitions of yarn given above that without conversion into fibres, the waste could not be spun into yarn.
9. With such background, let us now examine the facts of the present case.
10. According to the test reports of the Chemical Examiner, the yarn in question contained man made fibres of non-cellulosic origin. The appellants had claimed that they were only using non waste. The test reports however proved that what was used was white fibre composed wholly of man made crimped fibres of non-cellulosic origin (polyester). Other samples drawn also established the use of fibre of non-cellulosic origin. The position is summarised in Annexure-B to the show cause notice dated 17-12-1986 as under :-
ANNEXURE 'B' ______________________________________________________________________________ Description of Date of Identifi- Test Report Goods drawal cation of sam- Mark pie ______________________________________________________________________________ (1) (2) (3) (4) (5) ______________________________________________________________________________
1. Yarn-2/32's 6-4-84 F-5 The sample is two ply, NCW, V/48/52 light brown coloured spun Lot No. yarn, composed of man-made 18/1892-1722 fibres of cellulosic origin 55.5% (Fifty five decimal five) and man-made fibres of non-
cellulosic origin (polyester) 44.5% (Forty four decimal five).
Annexure - B
2. Yarn-2/32's 6-4-84 F-6 The sample is two ply spun NCW/V/48/52 yarn composed of man-made Lot No. 727/ fibres of cellulosic origin 3472 54.4% (Fifty four decimal four) and man-made fibres of non-cellulosic origin (polyester) 45.6% (Forty five decimal six).
Annexure B-2
3. Yarn-2/40's 6-4-84 F-8 The sample is two ply, spun NCW/48/52 yarn composed of man-made Lot No. fibres of cellulosic origin 47.0% 423/6562 (Forty seven decimal zero) and man-made fibres of noncellulosic origin (Polyester) 53.0% (Fifty three decimal zero). Annexure B-3
4. Yarn-2/40's 6-4-84 F-10 The sample is cream coloured NCW/V/48/52 ply, spun yarn, composed of Lot No. man-made fibres cellulosic ori 422/6892 gin 53.7% (Fifty three decimal 61.3% (Sixty one decimal three) seven only) and man-made fit of non-cellulosic origin (Polyester) 46.3% (Forty six decimal three). Annexure B-4
5. Yarn-2/15's 6-4-84 F-14 The sample is two ply, spun NCW/V/48/52 yarn composed of man-made fibres of Lot No. 154841 fibre of cellulosic origin 52.8% (Fifty two decimal eight) and origin (Polyester) 46.3% (Forty six decimal three. Annexure B-7 man-made fibres of non cellulosic origin (Polyester) 47.2% (Forty seven decimal two). Annexure- B-5
6. Yarn-2/40's/ 6-4-84 F-16 The sample is two polyester NCW/40/60 spun yarn, composed of man-
Lot No. 44030 made fibres of cellulosic
origin 61.3% (Sixty one
decimal three) and man-
made fibres of non- cellulosic
origin (Polyester) 38.7%
(Thirty eight decimal
seven). Annexure B-6
7. Yarn - 2/32's 6-4-84 F-18 The sample is two ply, steel
NCW/V/48/52 grey colours spun yarn corn-
Lot No. 28/ posed of man-made fibres of
1651x1681 cellulosic origin 53.7% (Fifty
three decimal seven) and man-
made fibres of non-cellulosic
origin (Polyester) 46.3%
(Forty six decimal
three. Annexure B-7
8. Yam-2/60's 6-4-84 F-21 The sample is two ply, spun
NCW/V/48/52 yarn composed of man-made
Lot No. 64869 fibre of cellulosic origin
52.5% (Fifty two decimal five)
and man-made fibres of non-
cellulosic origin 52.5%
(Fifty two decimal five)
and man- made fibres of non-
cellulosic origin polyester
47.5% (Forty seven decimal
five). Annexure B-8
9. Yarn-2/60's 6-4-84 F-24 The sample is two ply, light
NCW/V/48/52 blue coloured spun yarn com-
Lot No.... posed of man-made fibre of
cellulosic origin 54.7%
(Fifty four decimal seven)
and man- made fibres of
non-cellulosic origin
polyester 45.3% (Forty five
decimal three). Annexure 9
10. Yarn-2/60's 6-4-84 F-26 The sample is two ply, steel
NCW/V/48/52 grey coloured spun yarn corn-
Lot No. posed of man-made fibres of
729/3451 cellulosic origin 53.1%
(Fifty three decimal one) and
man- made fibres of non-
cellulosic origin polyester
46.9% (Forty six decimal nine).
Annexure B- 10
11. Yarn-2/60's 6-4-84 F-27 The sample is two ply light
NCW/48/52 green coloured spun yarn com-
Lot No..... posed of man-made fibres of
cellulosic origin 51.6%
(Fifty one decimal six) and
man- made fibres of non-
cellulosic origin polyester
48.4% (Forty eight decimal
four). Annexure B-11).
______________________________________________________________________________ The test reports on the samples drawn of the appellants' product are categorical and unambiguous. The copies of the test reports were supplied to the manufacturer and they were also given opportunity of cross examination of the witnesses, who were present on the date of the personal hearing fixed for 5-3-1991. The noticees, however, did not choose to cross examine the witnesses on the ground that they had not time to study the case records.
Thus, the plea of violation of the principles of natural justice in this regard is not tenable.
11. The plea taken by the appellants is that the samples were drawn for test from the yarn and not of the waste used by them. In their interim reply dated 10-1-1987, it was stated as under :-
" The material supplied in that annexure is perhaps an abstract from the copies of test reports drawn up by the Dy. Chief Chemist in respect of yarn only and not of waste."
The presence or absence of man-made fibres of non-cellulosic origin has to be determined with reference to the yarn presented for assessment. It is clear from the description of Item No. 18 of the Tariff, which read as under :-
Item No. 18 - MAN-MADE FIBRES, FILAMENT YARNS AND CELLULOSIC SPUN YARN ______________________________________________________________________________ Item Tariff Description Rate of duty1 No. ______________________________________________________________________________ (1) (2) (3) ______________________________________________________________________________
18. I. Man-made fibres, other thanmineral fibres :
(i) Non-cellusolic Eighty-five rupees per
kilogram,
(ii) Cellulosic Ten rupees per
kilogram.
II. Man-made filament yarn :
(i) Non-cellulosic -
(a) other than textured Ninety-five rupees
per kilogram.
(b) textured One hundred and
five rupees per
kilogram.
Explanation. "Textured yarn" means yarn that has
been processed to introduce crimps, coils,
loops or curls along the length of the filaments
and shall include bulked yarn and stretch
yarn,
(ii) Cellulosic Twenty rupees
per kilogram.
(iii) Metallized Eighty-five rupees
per kilogram.
III. Cellulosic spun yarn :
Yarn, in which man-made fibre of cellulosic origin
predominates in weight and, in or in relation to the
manufacture of which any process is ordinarily
carried on with the aid of power -
(i) not containing, any man-made fibres of non- Six paise per
cellulosic origin count per kilogram
(ii) containing man-made fibres of non- Eighteen rupees
cellulosic origin per kilogram.
Explanation I. - "Count" means the size of grey yarn
(excluding any sizing material) expressed in
English Count.
Explanation II. - For multiple fold yarn, "count"
means the count of the basic single yarn.
Explanation III. - Where two or more of the follo-
wing fibres, that is to say,
(a) man-made fibre of cellulosic origin;
(b) cotton;
(c) wool or acrylic fibre, or both;
(d) silk (including silk noil);
(e) jute (including Bimlipatam jute or mesta
fibre);
(f) man-made fibre of non-cellulosic origin,
other than acrylic fibre;
(g) flax;
(h) ramie;
in any yarn are equal in weight then, such one of
those fibres, the predominance of which would
render such yam fall under that sub-item or Item
(hereafter in this) Explanation referred to as the
applicable sub-item or Item), among the sub-items
and Item Nos. 18-III,18A, 18B, 18C, 18D, 18E, 18F-I
and 18F-II, which, read with the relevant notification,
if any, for the time being in force issued under
the Central Excise Rules, 1944, involves the highest
amount of duty, shall be deemed to be predominant
in such yarn and accordingly such yarn shallbe
deemed to fall under the applicable sub-item or
Item, as the case may be.
IV. Non-cellulosic Wastes, all sorts: Nine rupees per
kilogram.
Explanation. - This Item includes only wastes arising
in, or in relation to, the manufacture of man-made
fibres (other than mineral fibres) and man-made
filament yarns.
______________________________________________________________________________ Thus, it is clear that the plea taken by the appellants in this regard is devoid of any substance.
12. No material has been placed on record by the appellants to disprove the test results made on the samples of their yarn by the Chemical Examiner.
13. The main ground taken by the appellants to challenge the findings of the adjudicating authority is that the non-cellulosic waste was not the same as man made fibre of non-cellulosic origin, and that what their yarn contained was the non-cellulosic waste and not the man made fibre of noncellulosic origin.
While there is no dispute that during the relevant time there was separate Item No. 18-IV to cover non-cellulosic wastes, all sorts, the issue for consideration is whether the yarn which is presented for assessment contained or did not contain man made fibres of non-cellulosic origin. Noncellulosic wastes, all sorts classifiable under Item No. 18-IV was explained as wastes arising in or in relation to the manufacture of man made fibres (other than mineral fibres), and man made filament yarns.
The wastes referred to in the Tariff Entry relate to their origin. How it is to be used has to be determined on the basis of the facts on record in a particular case.
In the present case, there is undisputed evidence that what was contained in the yarn in question was the man made fibres of non-cellulosic origin. In the relevant Tariff Entry Item No. 18-III only fact for determination was whether the yarn contained or did not contain man made fibres of noncellulosic origin. The basis of origin of such fibres was not material for the said Tariff Entry.
The Item No. 18-III is reproduced once again to appreciate this point :-
"III Cellulosic Spun Yarn Yarn in which man made fibre of cellulosic origin predominates in weight and in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power :
(i) not containing any man made fibre of non-cellulosic origin
(ii) containing man made fibre of non-cellulosic origin."
The expression 'containing any man made fibre of non-cellulosic origin' is with regard to the yarn presented for assessment. The expression 'contain' implies the actual presence of a specified substance within something.
According to the Websters Dictionary 9th New Collegiate Dictionary 'contain' means 'to have within'.
How such "any man-made fibre" contained in the yarn was obtained through the process of waste or otherwise is not relevant for interpretation of the Tariff Entry. The only material aspect was whether it contained any man made fibre of non-cellulosic origin or not.
14. We find that the matter is covered in favour of the Revenue by the 3 Member Bench decision of the Tribunal in the case of Collector of Central Excise, Ahmedabad v. New Gujarat Synthetics Ltd. Final Order No. 250/95-D, dated 30-8-1995 in Appeal No. E/2007/86-D [1997 (89) E.L.T. 727 (T)]. The matter related to the old Central Excise Tariff. The facts were identical. It was discussed therein that any type of yarn is spun from the slivers in the form of loose rope. The constituent materials are converted into fibres, and different kinds of fibres are blended at different stages preparatory to the spinning of the blended spun yarn before the slivers are drawn. One or more slivers containing fibres of one type or different type are placed on the spinning frame for producing the required type of yarn. Yarn are classifiable on the basis of their fibre content and the fabric are also identified by their fibre content. In para-14 of that decision, it was mentioned as under :-
"14. The fact that the waste received was actually used in the production of spun yarn shows that it was a retrievable material and fit for conversion into fibre, in the production of spun yarn. Its end use actually was as a fibre. As it is seen from the Scheme of exemption under Item No. 18, as mentioned above, waste is used for the manufacture of polyester fibre (refer Notification No. 16/82-CE dated 4-2-1982), or is used for recovering DMT (refer Notification No. 168/76 dated 17-5-1976). Wastes are also used for the manufacture of man made fibres and tops through the processes like garneting, combing, carding and gilling (refer Notification No. 44/80-C.E., dated 24-4-1980). In this case, we are not concerned with that sort of waste which is fit only for recycling. We are concerned with the waste which is useable and used in the manufacture of spun/blended yarn through the processes which do not involve recycling of such waste."
15. The facts in the case of Collector of Central Excise v. Priyadarshini Spg. Mills Ltd. -1990 (50) E.L.T. 145 (Tribunal) were distinguished in para-16, which is extracted below :-
16. The goods in the case of Collector of Central Excise v. Priyadarshini Spinning Mills Ltd., 1990 (50) E.L.T. 145 (Tribunal) were described as "yarn including sewing thread of artificial staple fibre not containing generated synthetic staple fibre waste in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power and supplied in a form other than the plain (Straight) reel hank". The matter related to the new Central Excise Tariff wherein the description under Heading No. 55.05 and 55.06 was materially different from the description in the earlier tariff items under the old Central Excise Tariff with which we are concerned. In the case before us, we are concerned with Item 18(iii) of the old Central Excise Tariff. The Tribunal in the case of Kiran Spinning Mills v. CCE, Bombay [1986 (24) E.L.T. 414 (Tribunal)] had held that a judgment rendered in the context of a particular Tariff entry cannot be automatically applied in interpreting an altered Tariff entry. The Tribunal decision in the case of Priyadarshini was based mainly on the use of expression 'staple' in Heading No. 5506 of the new Central Excise Tariff. The Tribunal had concluded that the reports of the Chemical examiner were based on mis of the definition of staple fibre. Similarly in the case of Kerala Spinners Ltd. v. CCE [1992 (57) E.L.T. 301 (Tribunal)], the samples were in the form of lumps of different coloured fibres and hetrogenous mass with cut ends in varying short lengths (refer para 15 of the Tribunal Order). The Tribunal had based their decision in that case on the appreciation of the expression "staple fibre" and on its earlier decision in the Priyadarshini case referred to above. We do not consider that these decisions warrant any change in the conclusions drawn by us above, keeping the facts of the case before us in view, In the case of Modern Syntex (I) Ltd. v. CCE, Jaipur [1994 (73) E.L.T. 909 (Tribunal)], the Tribunal had held that for the purpose of classification in the Tariff, it is essential to find whether the yarn contained man made fibre of non-cellulosic origin when it is a blended yarn. The question before us is not whether the fibre is different from the waste but whether the spun yarn in question contained or did not contain the fibre of non-cellulosic origin. The Tariff entry uses the expression 'containing'. We have seen above that the spun yarn is produced after spinning the fibres. No yarn could be made out of the waste directly. It has to be made fit for mixing and blending with other constituent fibres and/or for forming sliver/roving. The fact that spun yarn has been produced itself establishes that the noncellulosic waste had been made fit for mixing/blending with other fibres. In the circumstances, there is no doubt that the yarn in question contained fibre of non-cellulosic origin.
In the case of Collector of Central Excise v. Priyadarshini Spg. Mills Ltd. - 1990 (50) E.L.T. 145 (Tribunal), there was a finding that the yarn of artificial staple fibre contained synthetic waste and not generated synthetic staple fibre, and the matter related to the new Central Excise Tariff and it was held that such yarn was classifiable under Heading No. 55.05 of the new Central Excise Tariff and not sub-heading No. 55.06 or 5504.31 of the said Tariff.
In Collector of Central Excise, Hyderabad v. Priyadarshini Spg. Mills Ltd. - 1997 (94) E.L.T. 287 (SC), the Hon'ble Supreme Court had noted that the Tribunal had held in that case that the raw materials used in the disputed yarn were not synthetic staple fibre and that the view of the Tribunal in that case had been accepted by the Board and a Circular No. 23/90 dated 1-11-1990 had been issued.
This Circular was in the context of new Central Excise Tariff and had no application to the law as in force prior to 28-2-1986. This circular provided that the yarn manufactured out of viscose staple fibre and non soft waste (polyester waste) was classifiable under Heading No. 55.05 of the Central Excise Tariff Act, 1985. Heading No. 55.05 covers yarn including sewing thread of artificial staple fibre not containing synthetic staple fibre. Item No. 18-III of the erstwhile CET was not similarly worded. It covered yarn which contained or did not contain any man made fibre of non-cellulosic origin. Para-16 of the Tribunal's decision in the case of Collector of Central Excise, Ahmedabad v. New Gujarat Synthetics Ltd. has already been extracted above. It is held therein that a judgment rendered in the concept of a particular Tariff Entry cannot be automatically applied in interpreting an altered Tariff Entry.
16. The other decisions referred to by the ld. Sr. Advocate are also not relevant and are clearly distinguishable.
In the case of Collector of Central Excise, Nagpur & Ors. v. Vardhan Syntex & Ors. -1991 (37) ECR 542 (Tribunal), the Tribunal observed that noncellulosic waste was not the same as non-cellulosic fibre. In that case it was observed that no testing had been done. The decision was rendered mainly on the ground that the synthetic waste was not fibre. The matter was decided on the basis of the cross examination of the Chemical Examiner that inferior quality yarn can be spun from waste. He has referred only to the test sample. No general and universal view could be taken by this reply relating to specific test sample.
Sub-standard fibre is not the same as waste. Unless the material is fibre it could not be take (sic) blending with other fibres to form a sliver/rope fit for spinning.
Thus, this decision cannot be applied to the present proceedings automatically.
In the case of Kerala Spinners Ltd. v. Collector of Central Excise - 1992 (57) E.L.T. 301 (Tribunal), it was an admitted fact that in that case noncelluiosic waste was used as raw material in the blending of yarn. In para-15 of the order there is a reference to the test report dated 14-2-1987 wherein the description of the samples was given as being in the form of lumps of different coloured fibres and heterogeneous mass with cut ends in varying short lengths. It was shown therein that what was used for blending with cellulosic yarn was 'synthetic waste' and not 'fibre'. In view of these facts as mentioned in the order, we do not consider that this decision is also applicable to the present facts.
17. After taking all the relevant facts and considerations into account, we agree with the view taken by the Id. Collector of Central Excise, the adjudicating authority. We agree with the view taken by him with regard to jurisdiction also. In the facts and circumstances of the case, the penalty imposed is also justified.
Accordingly, the appeal is rejected. Ordered accordingly.