9911796707
TMI Blog1994 (8) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... I, therefore, pass orders as follows. I order M/s Modern Syntex (India) Ltd., Alwar to pay duty as demanded in the show cause notice. I order M/s Modern Syntex Ltd. to pay a fine of Rs. 5,000/- in lieu of confiscation the seized Yarn which has already been released provisionally to them. I also impose a penalty of Rs. 10,000/- on M/s. Modern Syntex Ltd., under Rule 173Q for contravention of the Rules mentioned in the show cause notice." 2. Briefly stated the facts of the case are that M/s. Modern Syntex (India) Ltd. are engaged in manufacture of man-made non-cellulosic Spun Yarn falling under Central Excise Tariff Item No. 18. On 1-2-1984, Central Excise Officers of Bombay-1 Collectorate searched the premises of the appellant at Nariman Point, Bombay. Certain records were resumed and seized. On 1-2-1984 the officers of Central Excise Collectorate Bombay also visited the premises of M/s. Standard Transport Corporation, 28, Sholapur Street, Bombay and some of the premises where Yarn manufactured and cleared by the appellant was available. 66 Representative samples were drawn from 543 packages lying with M/s. Standard Transport Corpn., Bombay and 22 samples were drawn from the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Central Excise duty. Duty was not indicated separately. It was alleged in the show cause notice that the appellant charged from their customers Central Excise duty as applicable to Yarn of Polyester/Viscose blend though they discharged the duty liability on such Yarn by describing it as NCSW/V in the statutory documents and by treating such Yarn as falling under Tariff Item No. 18-III(i) of Central Excise Tariff. The Department was of the view that according to the labels affixed on the cones of Yarn indicated the Yarn composition as Polyester/Viscose, therefore, there was no question of the labels being affixed through inadvertence as stated by Sh. Bhandari. The Department also alleged that the Yarn was correctly classifiable under 18-III(ii). 3. Shri Jitendra Singh, the ld. Advocate appearing for the appellant submitted that samples of raw materials used for the manufacture of the Yarn and the Yarn manufactured by the appellant were also drawn by the Central Excise Inspector of the Range Office from time to time but the appellants never received any communication regarding adverse results; that the raw-material used in the 16 lots as specified in the show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s classifiable under Tariff Item 18-III(i). In support of his contention, the ld. Advocate for the appellant cited and relied upon the decision of the Tribunal in the case of Collector of Central Excise v. Vardhan Syntex reported in 1991 (37) ECR 542 in which the Tribunal had held :- 25. The full Bench of the Patna High Court in the case Ramkhelawan Sahu v. Bir Surendra Sahi and Others, AIR 1938 Patna 22 observed that the legal decision on one point (if decided after the argument) does not become obiter dictum merely because the decision on the other points was sufficient to decide the case. Therefore, we have no hesitation in holding that the observations in paragraph 14 of the order in Priyadarshini s case are not obiter dicta but a decision necessary to the issue involved in that case. As we have already held that staple fibre" and man-made fibres are synonymous terms the decision in Priyadarshini s case applies on all fours to the facts of these appeals. 26. We, therefore, hold that the Yarn manufactured by the assessees falls for classification under TI-18-III(i)." 4. Shri M.K. Jain, the ld. SDR appearing for the respondent submitted that the representative samples wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic synthetic waste whereas the position in the instant case is entirely different in as much as the presence of NCSW in the Yarn is in dispute and hence the facts in the two cases are different and the ratio is not squarely applicable. 7. We have carefully perused the above decision of Tribunal relied upon by the appellant. We have gone through the decision in the case of CCE v. Punjab Processors (P) Ltd. Order No. 395-459/86/B dated 30-6-1986. In this case the Tribunal observed in Paragraph 8 of the order that, Fibre is not the same thing as the Waste otherwise there was no need to carve out a separate entry 18-IV to cover waste. Similarly Import Tariff Schedule (Schedule I to the Customs Tariff Act, 1975) describes waste separately from Fibre. We also have gone through the technical literature on the subject and observe that on page 409 of Bernard Corbman s Textiles Fibre to Fabrics 5th Edition, it is mentioned that Staple is produced in a wide range of deniers and lengths according to desired end-uses. Similarly, Modern Textiles by Dorothy Lyle at Page 26 defines Staple Fibre natural or man-made as short lengths measured in inches or a fraction of an inch. In Kirk Othmers Enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Dy. Chief Chemist or the Chemical Examiner was not allowed to be cross-examined, we find that cross-examination of the Dy. Chief Chemist was not the only solution. There were other alternatives open to the appellant namely, collecting fresh samples and getting them tested again, which remedy the appellant did not follow. Moreover, we find that the report of the Dy. Chief Chemist was clear and unambiguous. Clarification etc., normally is required only when there is some ambiguity in the report. In this view of the matter, we hold that disallowing of cross-examination of Dy. Chief Chemist has not vitiated the decision in the case. We also observe that in the instant case it is not only the examination report but the marking on the cones of Yarn, non-mention of the amount of duty separately in the bills/invoices, the receipt of orders for polyester/viscose Yarn and non-mention of NCSW/V in the Bills/Invoices issued to the customers, all these cumulatively show that the Yarn contained Polyester Fibre and not Non-Cellulosic Synthetic Waste. After carefully examining all facts and circumstances of the case we hold that the Yarn in the instant case was classifiable under the then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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