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TMI Blog1996 (3) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... y for cotton fabrics containing more than 40% by weight of polyester fibre or yarn or both provided such fabrics did not contain any fibres other than cotton and polyester and also that where polyester filament yarn was used the value of the cotton fabrics containing such yarn did not exceed Rs. 25/- per sq. mt. Samples of such fabrics were routinely drawn. In the case of three sorts namely 4321, 943201 and 943204, the samples tested of grey fabric showed that the polyester content by weight was less than 40%. Before the original authority, the claim was made by the assessee that the samples of the finished fabric should have been tested and not of fabrics at the grey stage. It was submitted that during processing, the wax content of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant contained polyester filament yarn. The Notification No. 34/84 exempts cotton fabrics where the polyester content should be not less than 40% by weight. However, by proviso to the said Notification, it has been stipulated that, that the exemption contained in this notification shall not apply to the said cotton fabrics, if it contains - (i) polyester filament yarn, or (ii) fibres other than cotton and polyester". Hence, the fabrics in question even though otherwise eligible for the benefit of the concessional rate on the basis of test result conducted on the finished processed fabrics after subjecting them to processes, becomes ineligible for the benefit of the exemption notification, in view of the fact that it contains polyester fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri D.N. Mehta argued that it was clear that the value was less than Rs. 25/- per sq. mt. Therefore, the benefit of the notification was clearly extendable to the fabrics. 4. Shri A.K. Madan, ld. DR argued that the notification after amendment also could not apply to the impugned goods. It was admitted position that in this fabric under consideration, the weft consisted of polyester yarn. He stated that the amendment whereby in prescribing the weight of the non-cotton material, polyester yarn has also been included alongwith polyester fibre does not mean that the yarn could be filament yarn. He stated that where filament yarn is used the fabric continues to remain out of the purview of this notification. In other words, the word `yarn us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. DR sought to distinguish between polyester filament yarn and polyester yarn. It was his argument that polyester yarn need not be polyester filament yarn. To appreciate this argument, it is necessary to examine the tariff relating to such yarn as it then stood. At one material time, man-made fibre and yarn were covered under Item No. 18. Sub-heading I covered man-made fibres, sub-heading II covered man-made filament yarn, sub-heading III covered cellulosic spun yarn. The coverage of the item acknowledged only man-made filament yarn of cellulosic or non-cellulosic origin but did not cover any other polyester yarn. In other words only polyester filament yarn was mentioned in the tariff and not polyester fibre spun yarn. Reading the tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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