1999 (8) TMI 268 - AT - Central Excise

Issues Involved:
1. Whether the benefit of Notification No. 82/88-C.E., dated 1-3-1988 is available to laminated fabrics manufactured by the appellants.
2. Interpretation of the base fabric's classification under Chapter 52, 54, or 55.
3. Applicability of duty paid nature of the base fabric.
4. Alternative classification under sub-heading 5903.99.

Detailed Analysis:

1. Benefit of Notification No. 82/88-C.E.:
The appellants, M/s. Natson Laminates, manufacture laminated fabrics falling under sub-headings 5903.19 and 5903.29 and claimed exemption under Notification No. 82/88. The Assistant Collector initially approved the classification lists allowing the benefit of the notification, interpreting that the intention was to recover duty if not already paid on base fabrics used for lamination, not specifying the base fabrics to be of specific Chapters. However, the Collector (Appeals) held that the notification implied the base fabrics should fall under Chapter 52, 54, or 55, and subsequent amendments to the notification did not indicate a retrospective intention to recover duty irrespective of the chapter.

2. Interpretation of Base Fabric's Classification:
The appellants argued that the base fabric they used, a knitted cotton fabric falling under Heading 60.01, should be covered under the notification. They contended that the reference to Chapter 52 in the notification was an accidental omission and that the notification should have included Chapter 60. The appellants cited various notifications and historical tariff structures to support their claim that the effective rate of duty was intended to cover fabrics of both woven and knitted types. They argued that the description of goods should not be altered based on the rate of duty column in the notification.

3. Applicability of Duty Paid Nature of Base Fabric:
The appellants contended that the duty-paid nature of the base fabric was not mentioned in any show cause notices and that it was the revenue's responsibility to prove the non-duty paid character of the base fabric. They referenced legal precedents indicating that goods purchased from the market are presumed to be duty-paid unless proven otherwise by the department.

4. Alternative Classification under Sub-heading 5903.99:
The appellants also argued that if their primary claim was not accepted, the duty should be levied under serial No. 3 of Notification No. 82/88 and not at the tariff rate. They cited the decision in Bhor Industries Ltd. v. C.C.E., Pune, where the Tribunal allowed for alternative classification claims at the Tribunal's stage and remanded the matter for a de novo decision.

Judgment:
The Tribunal found substantial force in the revenue's submissions that a notification must be read in its entirety and construed as a whole. It was evident from the notification that the base fabrics of cotton should fall under Chapter 52, as indicated by the plain language of the notification and supported by the Tribunal's decision in Bhor Industries Ltd. However, the Tribunal agreed with the appellants that the Collector (Appeals) could not address the duty-paying nature of the base fabric as it was not raised in any show cause notices. The burden of proof for non-duty paid character rests with the department, and goods purchased from the market are presumed duty-paid.

The Tribunal remanded the matter to the jurisdictional Assistant Commissioner for a de novo decision regarding the classification of the products under sub-heading 5903.99, following the precedent set in the Bhor Industries case.

Conclusion:
The appeal was disposed of with instructions for a de novo decision on the classification of the products under sub-heading 5903.99 by the jurisdictional Assistant Commissioner.

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