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TMI Blog2001 (2) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff corresponding to sub-heading No. 5907.12 of the Central Excise Tariff. Heading No. 59.07 of the Customs Tariff covered the following :- Textile fabrics otherwise impregnated, coated or covered; painted canvas being theatrical scenery, studio back-cloths or the like. For the purposes of the EXIM Policy, it was found that for the import of flocked fabrics an import licence was required. The importers had not produced any import licence. It was also noted in the show cause notice dated 23-11-1996 that even for the import of artificial fur, an import licence was required and that it was only for the import of trimmings and embellishments for garments, made ups, knitwear, plastic and leather goods, that no licence was required. In the show cause notice dated 23-11-1996, differential duty of Rs. 92,179.54 was demanded. Penal provisions including those relating to confiscation were invoked. The value of the offending goods was determined as Rs. 11,93,805/-. Another show cause notice was issued on 5th December, 1996 wherein for the clearances effected under 12 Bill of Entries under Duty Exemption Entitlement Certificate (DEEC) Scheme and under another 9 Bill of Entries under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fabrics required an import licence. The importers were a trader and not an actual user. The learned DR referred to the test reports as referred to in para 3 of the brief facts of the case at page 3 of the paper book. He submitted that the test reports clearly indicated that the goods in question were flocked fabrics classifiable under Heading No. 59.07 of the Customs Tariff. He also referred to Chapter Note 5 under Chapter 43 of the Tariff and pleaded that the goods in question were not artificial fur and that the order passed by the learned Commissioner of Customs was liable to be set aside. In reply, Shri R.K. Handoo, Advocate, submitted that the importers had been importing similar goods for a number of years and no dispute had been raised by the Customs. Fur could be of short length as was in the present case. He relied upon the reasonings adopted by the adjudicating authority. He pleaded that although there was no scope for any doubt in the present case, even if there was any doubt, then the benefit of doubt should go to the importers. In rejoinder, learned DR referred to the test reports and the Explanatory Notes to the Commodity Description and Coding System (HSN) unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fibres gummed or sewn on to leather, woven fabric or other materials, but do not include imitation furskins obtained by weaving or knitting (generally, Heading no. 58.01 or 60.01). Chapter Note 4 of Chapter 43 relates to articles of apparel and clothing accessories with which we are not concerned in the present proceedings. 6. For understanding Artificial Fur as explained in Chapter Note 5 of Chapter 43, let us first understand what is the furskin. According to the scheme in the tariff, furskins could be raw furskins or the furskins that have been tanned or dressed with the hair or wool on. The expression Raw Furskins includes heads, tails, paws and other pieces or cuttings, suitable for furriers use. Both raw furskins and tanned/dressed furskins are a specie of hides or skins of animals. The tanned or dressed furskins are, however, those hides or skins of animals which have been tanned or dressed with the hair or wool on. In the Fairchild s Dictionary of Textiles, Sixth Edition, Fur has been so defined at page 255 - Fur 1. The fine, soft, dense hair covering of certain mammals. It generally consists of a double coating of hair, a layer of comparatively short, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce (plush). Pile fabric may be a double cloth structure woven face to face, with an extra set of yarn woven into both fabrics, interlacing with each cloth alternately as often as possible; the two fabrics are cut apart by a traversing knife which severs the pile yarns, producing two fabrics with a cut pile face (velvet). Pile should not be confused with nap. Examples of pile fabrics include: Carpets, imitation fur fabrics, panne velvet, plush, rugs, terry cloth, velour, velvet, velveteen q.q.v. Corduroys are another type of pile fabric where long floats on the surface, made by an extra weft, are slit causing the pile to stand erect. When fur is still attached to the skin, it will be known as furskin. 7. Furskin is a natural product. Artificial fur classifiable under Heading No. 43.04 of the Tariff has been distinguished from the natural furskins of the Heading No. 43.01 and Heading No. 43.02, as being an imitation of furskin. Chapter Note 5 of Chapter 43 which explains the Artificial Fur has already been extracted above in para 5. In common parlance, artificial fur is made from synthetic fibres. The fibres are processed to look like real fur. Sometimes natural fur fibres a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they had mis-declared the goods and that the goods imported were not artificial fur. Thus, this framing of the issue by the learned Commissioner of Customs does not flow from the allegations in the show cause notices. 11. We also note that in para 14 of the adjudication order while the allegation that the imported goods did not imitate the fur skin, has been taken up for consideration but the discussion has been limited only to the varieties of synthetic fur, methods of manufacture and chapter headings. It has been concluded that when imitated, artificial fur could be varied and of many varieties. No commercial consideration or trade understanding has been referred to and no finding has been recorded that the goods imported did imitate the furskin. Para 14 from the adjudication order is extracted below - 14. The Department has claimed that the imported goods do not imitate the fur skin. The literature available on the subject shows that there are hundreds of varieties of fur skin of various animals which cover a vide range of colours and shades. The Encyclopedia of Chemical Technology (Vol. II) by Kirk and Othmer gives different methods of manufacture of synthetic fur such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance has been placed on the test results. However, in para 18 the jurisdiction of the testing authorities had been discussed in the following manner - 18. The Rules of interpretation require that the classification of a product should be determined according to terms of Headings. The specific description is to be preferred to the general description. It was argued during the personal hearing held on 14-5-1997 that the third opinion of experts of I.I.T., Delhi and SASMIRA, Bombay giving an opinion that the imported goods were flock fabrics, should be rejected. The grounds cited for such a view is that it is an opinion and not a test report. It has been pointed out that in the first two reports I.I.T., Delhi and SASMIRA, Bombay had tested the samples to be artificial fur and it is not their job to give any opinion on classification. However, on the request of the Department these Institutes submitted a third report and opined that the imported goods could be classified as flocked fabrics. I have absolutely no doubt in my mind that I.I.T., Delhi and SASMIRA, Bombay have no jurisdiction whatsoever nor any legal authority to express an opinion as to under which Chapter Heading t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with normal dressings having a basis of amylaceous or similar substances; (e) Wood veneered on a backing of textile fabrics (Heading No. 44.08); (f) Natural or artificial abrasive powder or grain, on a backing of textile fabrics (Heading No. 68.05); (g) Agglomerated or reconstituted mica, on a backing of textile fabrics (Heading No. 68.14); or (h) Metal foil on a backing of textile fabrics (Section XV). The Flock has been so defined in the Fairchild s Dictionary of Textiles, Sixth Edition, at page 245 - Flock 1. A very short wool, cotton, rayon fiber, etc., obtained either as waste or by grinding rags and clippings. The waste, small, tangled bunches of irregular fibers, is produced in fulling or shearing the surface of fabric, especially pile and napped fabrics, and napping. These unspinnable fibers are used in weighting low-grade woolen fabrics, stuffing, and upholstery. Wool flock sometimes is long enough to be used in blends. When man-made fibers are used, and rayon has recently become one of the principle sources, the flock is cut from the tow. Flock obtained by cutting and grinding is almost in powder form and is used in flock printing, q.v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soft, dense hair covering of certain mammals. It generally consists of a double coating of hair, a layer of comparatively short, soft, curly, barbed hairs, (underfur) protected by longer, smoother, stiffer hairs (guardhair) which grow through the underfur. Fur is distinguished from hair which is longer, thinner and coarser. Fur fiber is generally spun in combination with other fibers, e.g., wool, cotton, rayon staple fiber. It is usually very soft, protrudes from the yarn and sometimes tends to shed. 2. Sometimes used for chennile pile. The expression Fur-like Fabrics has been defined in the same Dictionary as follows : Fur-like Fabrics A broad term of woven and knit modacrylic and acrylic fabrics made in imitation of various furs, e.g., astrakhan, beaver, chincilla, mink. Generally made with a long pile which is given a special finishing treatment. (Emphasis supplied). There is no expression artificial fur cloth in the said Dictionary. In fact, the expression Fur-like Fabric is the fabric which is also known as artificial fur fabric . In the said Dictionary there is also an expression Fake Furs which has been defined as follows : Fake Furs Pile fabrics made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows : PLUSH : Woollen or worsted pile cloth, the pile being one-eight of an inch or more in height. Plush has many well-known uses and is a exaggerated form of velvet. The term is from the French peluche. This, in turn, is taken from the Latin, pilus, which means hair. The cloth is compact and bristly. Made in silk, cotton, mohair, and combinations of fibers, as well as in wool or worsted. Cotton plush has a deeper pile effect than velour or velvet. Used in caps, coats, muffs, powder puffs, and upholstery. Rayon plush simulates the cotton type and has the same uses . (emphasis supplied). Thus plush has been defined as woollen or worsted pile cloth, the pile being one-eight of an inch in length or more in height. It has been described as an exaggerated form of velvet. From this definition it is clear that the difference between velvet and plush depend on the size of the pile. If it is less than 1/8 it is known as velvet and if it is more than that it is known as plush. In fact, plush, is an exaggerated form of velvet. But that cannot be said of artificial fur cloth which is fur like cloth made in imitation of various furs. The length of the pile is not the sole crit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made above in regard to the meaning of artificial fur cloth vis-a-vis the description of the goods in question imported by the petitioners, we do not think it necessary to discuss at length the various well-settled principles of the interpretation of items in the taxation statutes. A reference was made in the course of the arguments to the rule of common parlance interpretation or commercial parlance interpretation. Reliance was also placed on affidavit of a trader from Delhi which is annexed as Exhibit I to the petition. This affidavit in our view does not in any way help the petitioners because it says that the artificial fur cloth is a commercial term and the same includes all pile fabrics like velvet, velveteen, etc. It is further stated that in the market all the traders also buy and sell goods like velvet, velveteen, etc. as artificial fur cloth and even billing of the same is also done as artificial fur cloth. This affidavit, in our opinion, does not in any way help the petitioners. Evidently, the deponent in this affidavit has taken expressions velvet and velveteen and artificial fur cloth as inter changeable which is not true. There is no other evidence to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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