9911796707
TMI Blog2009 (2) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ad classified it under CETH 52.07. 2. Ld. DR on behalf of the Revenue submits that the product manufactured by the appellants was actually Leno gauze fabric and they had declared the same as mosquito net fabric to avoid payment of duty. For this he drew support from the fact that a statement was recorded from Shri Anilbhai V. Shah, Partner of M/s. Gujarat Healthcare, Ahmedabad from whom the consignment was seized and who was one of the buyers wherein he stated that what they had purchased was bleached leno gauze fabric and they were using the same exclusively for manufacture of bandages; he also had stated in his statement that fabrics were being cleared describing the same as bleached mosquito net fabrics but what was received by them wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for curtaining as mentioned in the notes under CETH No. 5803. According to him it is the gauze which is classifiable under Chapter 52 which finds itself mostly used as bandage and not the product under 5803. He submits that Chemical Examiner has clearly reported that the fabrics are open weave fabrics and it is his submission that the report does not support the case of the Revenue. He also submits that Commissioner had set aside the confiscation of the fabrics seized from M/s. Gujarat Healthcare which has been set aside and no appeal has been filed against this order. He submits that there cannot be a part challenge of the order. 3.1 We have considered the submissions from both the sides. According to Chapter Note 3 of Chapter 58, for pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of standing threads and crossing threads and form loops through which weft yarns pass". Basically the question to be examined is whether plain weave and open weave are same which is the assumption on the basis of which Commissioner has passed order. Plain weave fabrics falling under Chapter 52 and leno gauze fabrics which fall under Chapter 58 are entirely different. 3.2 Plain weave has been explained in sub-heading note to Section XI as "a fabric construction in which each yarn of the weft passes alternatively over and under successive yarns of the warp and each yarn of the warp passes alternately over and under successive yarns of the weft. The weave pattern is shown diagrammatically below :- Plain weave is simplest and most commonly us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bandages and dressings often called 'gauze' are classifiable under Chapter 52 to 55 was not considered by the Tribunal in M/s. Mangala Textiles case. However, we find that this Note is applicable only to plain weave fabrics and not leno weave fabrics which is the fabric under consideration in this case. No doubts arise when we see the definition of gauze sometimes also known as leno weave given in Chapter Note 3 of Chapter 58. 3.4 The Revenue's case does not only depend upon the technical aspects which have been discussed above. The case is also supported by the following :- (i) Shri Hetalbhai N. Shah, Managing Director of the respondents had admitted that they had manufactured and cleared bleached leno gauze fabrics which were subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forth their arguments. 3.6 Therefore, penalty imposed on the Director of the respondents as well as the partner of M/s. Gujarat Healthcare at Rs. 50,000/- set aside by the Commissioner cannot be disturbed & order of the Commissioner shall stand. Similarly order of the Commissioner (Appeals) setting aside the confiscation also is upheld. Order-in-Original passed by the Original Adjudicating Authority is restored as regards classification of the Bleached Leno Gauze Fabrics, duty with interest demanded thereon and penalty under Section 11AC of Central Excise Act, 1944 and the order of the Commissioner (Appeals) is set aside. We make it clear that the order of the Commissioner (Appeals) as regards stiffened fabrics (buckram) is not disturbed s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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