1988 (11) TMI 345 - AT - Central Excise

Summary

Issues:
Classification of mosquito netting under Tariff Item 19(i) and applicability of Notification No. 226/77 for concessional rate of duty.
Determination of average count of mosquito netting for duty calculation.
Applicability of Notification No. 210/79 retrospectively.
Interpretation of statutory formulas for determining average count in cotton fabrics.

Analysis:
1. The respondents, processors of cotton fabrics, received mosquito netting for processing meant for supply to the Defence Department. They classified it under Tariff Item 19(i) for concessional duty under Notification No. 226/77. The Deputy Chief Chemist couldn't determine the average count using the statutory formula, leading to demand notices.
2. Notification No. 210/79 issued a formula for average count calculation post-dates the demands, hence not applied retrospectively.
3. The Collector of Central Excise (Appeals) held that the average count was determinable under Notification No. 226/77, allowing the appeal and ordering relief.
4. The Revenue appealed, arguing that the average count couldn't be ascertained, and Notification No. 210/79 couldn't be retrospective.
5. Respondents argued that average count could be calculated under Notification No. 226/77, citing Tribunal orders supporting their view.
6. The Tribunal analyzed past cases where a similar issue arose, applying the ratio of judgments to the present matter. Notification No. 7/78 clarified the method for determining average count retrospectively, which was upheld by the Tribunal.
7. The Tribunal applied the same rationale to the current appeal, directing the use of the calculation method in Notification No. 210/79 for determining the average count of mosquito netting.
8. The impugned order of the Collector of Central Excise (Appeals) was modified, and the appeal was disposed of accordingly, directing the application of the calculation method in Notification No. 210/79 for determining the average count of mosquito netting.