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TMI Blog1999 (8) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of notification, holding that the intention of the Government was to recover duty if not already paid on base fabrics used for lamination purposes and not that the base fabrics should be of specific Chapter; that the Notification did not carry any condition that the base fabrics should be of Chapter 52.54 or 55. 3. On appeal, the Collector (Appeals) held that it appears from the Notification that the base fabrics would be classifiable under Chapter 52, 54 or 55 of C.E.T.A.; that the fact that notification was amended subsequently by Notification No. 150/89, dated 12-6-1989 and 57/90 deleting the reference to Chapter 52, 54 or 55, did not lead to conclusion that the intention of the Government was only to recover duty on the base fabrics if not already paid irrespective of the Chapter in which it falls; that if that was the case, the amending notifications would have been given retrospective effect. 4. Appearing on behalf of the appellants, Shri R. Swaminathan, learned Advocate, submitted that the appellant is engaged in the manufacture of cotton fabrics laminated with P.U. Foam; that the base fabric used by them is a knitted cotton fabric falling under Heading 60.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iption would also cover laminated fabric made of such base fabric falling under Chapter 52. The formula mentioned in column 4 (Rate of duty) is only a measure for computing the rate of duty and the formula does not require one to look at the duty actually payable on the fabric actually used; that in any case, the measure for computing the rate of duty would not change the description of the product. He referred to the judgment in J.K. Steel Ltd. v. U.O.I. - 1978 (2) E.L.T. (J 355) (S.C.) = 1969 (2) SCR 481. He also pleaded that as they are not manufacturer of any base fabric, the second part of the formula relating to rate of duty is inapplicable and reliance was placed on the decision in Decent Dyeing Co. v. C.C.E. - 1989 (43) E.L.T. 782 (S.C.). 5. Regarding duty paid nature of base fabric, the learned Advocate contended that this was not mentioned in any of the show cause notices issued to them; they had furnished the required details including invoice No. and GP-1 in the classification list itself; that it is for the revenue to prove that base fabric is not duty paid. He relied upon the decision in Decent Dyeing Co., supra, and decision in the case of Capital Dyeing Co. v. C.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47) E.L.T. 500 (S.C.) in which it was held that an exemption provision is like an exception and on normal principle of interpretation of statute it is construed stricly either because of legislative intention or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to augment state revenue. He also referred to the decision in Kirloskar Cummins Ltd. v. U.O.I. - 1982 (10) E.L.T. 29 (Bom.). 7. In reply, the learned Advocate, appearing for the appellants, submitted that the department is extending the rate of duty mentioned in column 4 of the table appended to the notification to the description on the goods which cannot be done; that if something is to be extended in the notification, it can be done only by legislature; that Chapter 52 cannot be read to column 2 of the Notification as it is not mentioned therein. Finally he mentioned that rules governing the classification of goods under Tariff entry would also apply for working out the exemption under Notification as held in Western Refrigeration Pvt. Ltd. v. Collector of Customs, 1995 (77) E.L.T. 673 (T), the appeal against which has been dismissed by the Supreme Court as reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er square metre plus the duty for the time being leviable on base fabrics under Chapter 54 or 55, as the case may be, if not already paid. 03. 5903.99 Other textile fabrics impregnated, coated, covered or laminated with plastic. Rs. 5.50 per square metre. 8.2 The following amendment was made in Notification No. 82/88 by Notification No. 150/89-C.E., dated 12-6-1989 :- In the Table annexed to the said notification, against Sl. No. 01, in column (4), the words under Chapter 52 shall be omitted. 8.3 The Notification No. 82/88 was further amended by Notification No. 57/90-C.E., dated 20-3-1990 as under :- For the entry against S. No. 02, the entry Rs. 8.84 per square metre plus the duty for the time being leviable on the base fabrics if not already paid shall be substituted. 9. The issue involved in the present matter is whether the words of base fabrics of cotton mentioned in column 3 against Serial No. 1 of the Table annexed to Notification No. 82/88 refers to base fabrics of cotton falling under Chapter 52 alone or will it cover the fabrics falling under Chapter 60 of the Tariff also. The Appellants have referred to the old Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturer. Thus following the ratio of the Tribunal s decision in Bhor Industries case, we hold that there was no infirmity in the impugned order passed by the Collector (Appeals) to the effect that Sl. No. 1 and 2 of the Table annexed to Notification No. 82/88 covers those fabrics which are manufactured from the base fabrics falling under Chapters 52, 54 or 55. However, we agree with the learned Advocate for the appellants that Collector (Appeals) cannot go into the question of duty paying nature of the base fabric as the same was not raised in any of the six show cause notices. Further, it has been a settled law that the burden is on the department to prove the non-duty paid character of the base fabric. Moreover, the goods purchased from the market are presumed to be duty paid unless otherwise proved. The appellants have also mentioned, as an alternative plea, that the duty can be levied only under serial No. 3 of Notification No. 82/88 and not at the Tariff rate relying upon the decision in Bhor Industries, supra. In Bhor Industries case the Tribunal observed that alternative classification at the Tribunal s stage is claimable as in that case at no stage the applicability of exem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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