9911796707
TMI Blog1992 (8) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Export Policy, April 1985 - March 1988 on the strength of a REP licence transferred in his favour by the original licensee. The petitioner filed bills of entries with the respondents for clearance of these goods. The clearance was not given by the respondents as, according to them, the goods imported by the petitioner were in fact not artificial fur cloth but velvet which is not allowed to be imported under a REP licence. 4. Aggrieved by this action of the respondents, the petitioner filed this writ petition. Evidently, there is no dispute in these cases about the eligibility of the petitioners to import artificial fur cloth . The real dispute is whether the goods imported by the petitioners are, in fact, artificial fur cloth or not. The answer depends on the interpretation of the item artificial fur cloth . 5. Before proceeding further, it may be expedient at this stage to refer briefly to some of the provisions of the Import and Export Policy 1985-1988. Appendix 17 to the policy contains, inter alia, the description of materials allowed for import against each export product covered by the policy as well as other conditions relating thereto. Para 5 of the said Appendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents is that what has been imported by the petitioner is not artificial fur cloth, but velvet which is actually nothing but man-made fabric. Reliance is also placed on the report of the Chemical Examiner, Customs, to whom the sample of the product was forwarded for analysis. The report is as follows : The spl. is cut piece of woven pile fabric having short acrylic piles % Pile = 64.1 Blended spun yarns of polyester viscose = balance. It is composed of Polyester = 53.4% Viscose balance. App. pile lgth = 4 mm Sd/- Sd /- According to the Respondents, it is clear from the analysis report that the fabric imported by the petitioner is not artificial fur cloth but velvet. 10. We have carefully considered the rival contentions. No doubt, artificial fur cloth is also fabric. It is also one of the species of the fabric. But what is allowed to be imported under Appendix 17 is only artificial fur cloth - not all fabrics. On the other hand, by virtue of para 5 of Appendix 17 read with item 31 of Appendix 2 Part-B, no other fabric is allowed to be imported. We shall, therefore, examine what is known as artificial fur cloth . For that purpose, we may refer to some of the defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This material is truly cotton velvet and is not the same as velveteen. Density of pile depends on the number of picks per inch, which ranges from about 175 to more than 600, with about 80 ends per inch. Filling yarns are combed, soft spun, usually made from long staple cotton. Single warp yarns are used in poorer grades and combed-ply warp yarns in better qualities. Velveteen is cut by hand or machine, generally dyed in the piece but also printed. A waxed finish may be given to the pile to increase luster. Velveteen differs from corduroy in the arrangement of the floats of the pile filling which are scattered as regularly as possible instead of being confined to one group of warp threads. The finished fabric has a smooth surface, covered with short cut pile not more than 1/8 inch (0.32 cm) in length. Uses : men s, women s and children s wear, draperies, bedspreads". From the aforesaid definition it will appear that ordinarily velveteen is finished fabric covered with short cut pile not more than 1/8" (0.32 cm) in length. If the surface is longer it will become plush which again has been defined as a warp pile fabric with cut pile surface longer than velvet pile and less cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been given, it is dear that the pile should be long. The function of fur fabric be to give warmth and furry effect and so a high or long pile is used ....... Besides the aforesaid description of artificial fur cloth, it may also be observed that even in common parlance the word artificial means any imitation, as a substitute, or stimulator . Hence, unless a fabric is an imitation of any fur, it cannot be termed as artificial fur fabric . In the instant case there is nothing to show that the fabric in question had any resemblance with fur fabric or that it was an imitation of a fur fabric except that the description in the Bill of Entry and other papers was given as artificial fur fabric. That description, by itself, is not determinative of the actual classification of the goods. 11. Learned counsel for the respondents placed before us a sample of the fabric imported by the petitioners which has also been seen by the learned counsel for the petitioners. We have put the same on record. A look at the same also does not give an impression that it has anything to do with fur cloth or that it has any resemblance to fur cloth. It does not at all appear to be an imitation of fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the fur cloth or artificial fur cloth is put. 14. A reference was also made before us by the learned counsel of the petitioners to a decision of the learned Single Judge of this Court in Writ Petition No. 149 of 1987 decided on 29th January 1987 [1987 (28) E.L.T. 255 (Bom.) where the Court came to a prima facie conclusion that the velvet cannot be excluded from the description of artificial far cloth. The learned Single Judge was of the opinion that prima facie velvet cannot be excluded from the description of artificial fur doth. Repelling the contention of the revenue that in trade parlance velvet is understood as a separate commodity itself and is never understood as artificial fur cloth, it was observed : This itself, in my opinion at this stage is not conclusive because the genus of artificial fur cloth can Undoubtedly include the species of velvet . The leaned Judge in that case, proceeding on the assumption that the fabric imported by the petitioner was velvet, held that it cannot be excluded from the description of that class of the commodity known as artificial cloth. We have carefully considered the said decision. We, however, find it difficult agree with the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
