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TMI Blog2005 (7) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of limitation alleging that there was mis-declaration and also proposed to invoke the penal provisions apart from proposing to deny the whole of the credit and not only the difference between 50% and 60% and after considering that the Tribunal vide Order No. 334/99, dated 4-2-99. Had remitted the proceeding initiated vide SCN 6-3-96 to the Assistant Commissioner after setting aside the orders of the lower authorities, leaving the question of manufacture open. Considering that the said question was first to be determined and only thereafter duty liability, the quantum of credit, benefit of notification, etc., would arise. It was held that there is no manufacture, and then nothing further would survive in the matters. He disposed off the proceedings, initiated by the Assistant Commissioner by the Show Cause Notice dated 6-3-96 as also the Show Cause Notice No. V/52/15/91/98-CX, Adjn dated 18-6-98 by the order impugned before us, after holding as follows :- Since the question of manufacture is to be decided first before proceeding further in the matter and the question of manufacture now being open and in view of the fact that the Tribunal has found that the failure to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible. It is also not disputed that there is shrinkage as per international standards. Commissioner himself observes (para 7.l page 7) that shrinking denotes verity of processes for shrinking fabrics to avoid excessive shrinkage in the garments and that it is known as preshrinking. Thus Commissioner accepts preshrinking as a process, which is done by the manufacturer for shrinking fabrics to avoid excessive shrinkage. It is also a fact that such pre-shrinked fabric is cleared as such. Commissioner at para 18 of the order also accepts that the controlled compressive shrinkage carried out by M/s. K.G. Denim is an irreversible one which means whatever percentage of shrinkage imparted to the fabric is irreversible. Inspite of this fact Commissioner concludes that Controlled Compressive shrinkage (CCS) does not result in a lasting change to the fabric as it can undergo further shrinkage, which does not appear to be correct. 2. According to the Supreme Court judgment, what is required is whether the process imparts any lasting change to the fabric. In the present case, the controlled compressive shrinkage imparts certain percentage of shrinkage (as decided by the manufacturer) which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Order-in-Original interpreted the above said affidavit of Shri Veeraraghavan to mean that compressive shrinkage amounts to lasting change and they (Hon ble CEGAT) cannot subscribe to this conclusion on the basis of the said evidence, particularly in the light of the rest report of the Office of the Deputy Chief Chemist, Madras. In the test report of the Deputy Chief Chemist it has only been stated that the FMDM solution applied on the denim fabric will not have any effect on the fabric other than wetting/damping of the fabric and has not given any opinion regarding CCS. But in the affidavit of Shri Veeraraghavan the shrinkage (Controlled Compressive Shrinkage) achieved by the process performed in the Monforts machine has concluded as lasting. Since the Deputy Chief Chemist and Shri Veeraraghavan have reported in respect of different processes, the observation of the Hon ble CEGAT that they cannot subscribe to the opinion of the Assistant Commissioner that compressive shrinkage amounts to lasting change particularly in the light of the test report of the Deputy Chief Chemist does not appear to be correct. 6. The Process carried out by M/s. K.G. Denim, as per the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in contact with the blanket by the drum of a modified Palmer machine . 9. Commissioner has also held that any prior stages of the processes enumerated in the chapter note can not be termed as any other processes. This hypothesis is not pertinent to the present case since the controlled compressive shrinkage process is not carried out as an intermediate process by K.G. Denim before achieving shrink proofing and since this CCS process is specific for Denim fabrics and the same is as per International Standards. Further as per Supreme Court s judgment, what is required is that there should be process giving lasting character, and it does not prescribed any condition as made out to be. 10. Commissioner has also observed that since cotton fabric shrinks, when it comes in contact with water, every such shrinkage cannot be termed as resulting in manufacture. This observation of the Commissioner is also not pertinent to the present case since the CCS is not achieved by K.G. Denim by wetting the fabric in water and it is obtained by the different process as brought out earlier. 11. Commissioner has also observed that shrinkage or any process which merely brings about part shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 253 etc available before him. He ought to have discussed and connected all the evidences available before him in this de novo adjudication. 14. The Government of India, vide its Notification 4/96, dated 4-3-96, has inserted the Explanation II to Notification 40/95, dated 16-3-95 and thereby has clarified that the exemption under the later Notification will not apply to the products commonly known as Denim Fabrics . In view of the above insertion, KGD are not eligible for the benefit of the Notification 40/95 from the date of issue dated 16-3-95 and hence it is not necessary to disallow the benefit on the grounds that KGD has carried out any other process which is not specified in the Notification in addition to the specified processes, as provided for in the Notification. Further, denim fabrics are not eligible for exemption under the said Notification with effect from 16.3.95 even if subjected to the process specified in the Notification . Hence, it appears that the decision of the Commissioner on question of manufacture in the de novo proceedings will have no impact in allowing/disallowing the benefit of the notification to KGD with effect from 16-3-95. Further, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect order that since there is no manufacture involved in what the company does on its Monforts machine, the SCNs mentioned in para 10 and 12 would not survive, has proceeded to decide the issue of deemed credit for the purpose of completion of records. The Commissioner, based on the opinion of experts, held that in the case of shuttleless looms, the yarn used in the edges of the fabric which locks the weft is the selvedge and in this case the monofilament yarns used at both the edges is the selvedge and all other yarns are to be taken as the body of the fabric and hence, on this factual aspect itself the controversy raised in the notice is to be dropped as unsustainable. 18. The case of the dept. is whether the monofilament yarn and polyester yarn used by KGD in the selvedges of the denim fabric should be considered for allowing higher deemed credit under clause (b) of the Notification 29/96 C.E. (N.T.), dated 3-9-96. The para 2 (II) of the Notification reads as follows: in case of a manufacturer other than a composite mill, shall be equivalent to the amount calculated at the rate of - (a) 50 per cent of the duty of excise leviable under the Central Excise Act, 1944, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Whether after taking into consideration the facts stated above, the order of the Commissioner holding that the alleged process does not amount to manufacture and thereby dropping the proceedings initiated in the SCNs dated 6-3-96 and 22-6-98 is legally correct and proper. 2. Whether by an order passed under Section 35C, the Tribunal should modify/set aside the order passed by the Commissioner or pass such other order as may be deemed fit. 3. After hearing both sides and considering the material on record, it is found - (A) The show cause notices, set aside by the impugned order fall in three categories, as below- (i) Notices on ineligibility to Deemed Credit viz. 29-7-98, 7-9-98, 27-11-98, 13-1-99, 16-3-99 and 31-5-99 answerable to Commissioner. (ii) Notice dated 18-6-98 on alleged CLANDESTINE CLEARANCE of fabrics answerable to Commissioner. (iii) Notice dated 6-3-96 on the proposal to finalise the Provisional Assessments answerable to Assistant Commissioner as remanded by Tribunal for DENOVO PROCEEDINGS. Since there is no notice dated 22-6-98 as mentioned in the appeal by Revenue and it was submitted that reference to SCN dated 22-6-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in making the fabric. The argument of the counsel that in interpreting the provisions of the notification issued under Rule 57A (a Modvat provision), a view contrary to the basic provision cannot be canvassed is, in my opinion, well taken. 29. In any case, the need to go into this aspect may not arise if the matter could be resolved on the factual aspect itself. The opinion obtained by the Department is without bringing to notice the factual position that the fabrics are woven on shuttleless looms and not on shuttle looms. Since the difference in identifying the selvedges between the fabrics woven on shuttleless and shuttle looms has not been noticed, this aspect was not considered in taking the opinion. The definition given in the Textile Terms and Definition clearly brings out this difference. 30. The experts to whom the company has made reference have clearly opined that in the case of shuttleless looms, the yarn used in the edges of the fabric which locks the weft is the selvedge and in this case the monofilament yarns used in the fabric between these two monofilament yarns are to be taken as the body of the fabric. This view is based on the definition of selvedg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted and is rejected. (D) The other pleas made in the very said para 4.16 i.e. Regarding the Commissioner ought to have considered and decided the SCN s separately on merits and not on his finding on the decision in the DE NOVO proceedings is considered. It is found that the Boards order under Section 35E(1) of the Central Excise Act, 1944 does not question or refer, the Commissioners conduct in deciding the DE NOVO PROCEEDINGS vide SCN dated 6-3-96 answerable to an Assistant Commissioner as a point to be determined by this Tribunal. In fact, in para 2.7 of the order, the Board has recorded the submission made by the Respondents and recorded by the Commissioner of CBEC instructions/orders nos. 362/78/97-CX, dated 9-12-97 clarifying that in order to obviate conflicting decisions, when more than one adjudicating authority has jurisdiction in the same Commissionerate, then all such cases can be adjudicated by an officer competent to decide the case where the duty involved is of the highest amount; Commissioner has followed these instructions. In the 35E(1) order, Board has not challenged that conduct as it was as per Boards order. In this view, there is no force in the plea agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by persons dealing with them as JEANS/DENIMS FABRIC in TWILL WEAVE, at this stage, are subject matter of excise levy in this case. (F) Before proceeding further in the quest to determine the exigibility of the entity in view of court s decisions, certain definitions, of terms understood by people dealing in such goods and the provisions of Central Excise Tariff Act, 1985 are required to be noted. They are - (i) From Fairchild s Dictionary of Textiles, 6th Edition, 1988 as :- Fabric : A cloth is that Woven, Knitted, Braided, Netted, Felted or Pleated with any Textile fibre, or is a Bonded Web. Derived from the Latin term Fabrica, which means fabric or workshop. Finised Goods : Converted Fabrics. Cloths that, after having been constructed, have been passed through all processes required to make the goods suitable for sale to the ultimate consumer. Finishes, Basic or Regular : All processes required to convert Gray (or Greige) goods into merchandise saleable to the consumer of ultimate processor. Basic finishes are mechanical and/or chemical. Finishes that appeal to the eye include Shedding, Singeing, Brushing, Beetling, Mercerization, Tentering, Calendering, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o spelled grey, however, gray is more popular. Referred to as Greige goods or in the Greige; pronounced as Beige, the French word for Natural, from which it was corrupted. While Greige is used to some degree for silk and man-made fabrics, there is a tendency toward the use of the word gray instead, particularly in the case of silk. Synonym: loom state. Jean : A Warp faced, three-harness cotton Twill generally woven of carded yarns in weights lighter than drills; it has more threads per inch and a finer twill line than drills. The Twill runs from lower right to upper left, and some versions are made with shadow stripes accomplished by alternating groups of reverse and regular (s and z) yarns in the warp. Jeans are occasionally made with Cotton Warp and low-grade wool or shoddy filling. The fabric may be used in the Gray. Dyed solid colors or printed and is sometimes mercerized. Uses: Sportswear, Work clothes, Corsets, Doctors and Nurses uniforms, Children s play clothes, Decorative fabrics, Backing of coated fabrics and some industrial purposes. Sometimes used Interchangeably for Denim , for example Blue Jeans . 1. A British term for a filling faced one up, two down Twil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Heading Nos. 52.09, 52.10 and 52.11) (a) woven on looms other than handlooms and (b) subject to the process of bleaching, mercerizing, dyeing, printing, water-proofing, shrink-proofing, organdie processing or any other process or any two or more of these processes without the aid of power or steam. Under Chapter 52 for the year 1995-96 (3) In relation to products of heading Nos. 52.07, 52.08 and 52.09, bleaching, mercerizing, dyeing, printing, water-proofing, shrink-proofing, organdie processing or any other process or any one or more of these processes shall amount to manufacture . Heading No. Sub-heading No. Description of goods 52.07 Woven fabrics of cotton, containing 85% or more by weight of cotton 5207.10 -No subjected to any process -Subjected to the process of bleaching, mercerizing, dyeing, printing, water-proofing, shrink-proofing, organdie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inting, water-proofing, shrinkproofing, organdie processing or any other process or any one or more of these processes: 5207.21 ▪ Bleached woven fabrics 5207.22 ▪ Dyed woven fabrics 5207.23 ▪ Printed woven fabrics 5207.29 ▪ Other woven fabrics (G) The issue as to when a Gray fabric would become Processed fabric , on application of an operation/activity, has been finally settled by Constitutional Bench of the Apex Court. In the case of Ujagar Prints Etc., v. UOI Others [1988 (38) E.L.T. 535 (SC)], while upholding the view taken by the Division Bench of the Apex court in the case of Empire Industries Ltd., the Constitutional bench held as follows:- 16. On a consideration of the matter, we are persuaded to think that the view taken in the Empire Industries case that Grey-fabric after they undergo the various processes of bleaching, dyeing, sizing, printing, finishing etc., emerges as a commercially different commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of Calcutta High Court had to consider this question in the context of Coal Mines (Conservation and Safety) Act, 1952. The objection of the petitioner in that case was that although coal might be a material or a commodity, it was not something which was produced and therefore, the entry which applied to the goods produced in India could not apply to coal. No question of manufacture obviously arose. It was submitted that the coal produced itself. This was rejected. The word produced appearing in entry No. 84 of List I of the Seventh Schedule is used in juxtaposition with the word manufactured according to the Division Bench and used in connection with duty of excise and consequently it would appear to contemplate some expenditure of human skill and labour in bringing the goods concerned into the condition which would attract the duty. It was not required that the goods would be manufactured in the sense that raw material should be used to turn out something altogether different. It would still require that these should be produced in the sense that some human activity and energy should be spent on them and these should be subjected to some processes in order that these mig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal or ancillary to the completion of the manufactured product . Operations/activities, whatever they may be, would be only incidental or ancillary to the woven fabrics , if such process do not transform and bring an entity i.e. such woven fabrics to a stage that they are known in the excise law, that is to say known in the market, to be having a distinct separate identifiable function. If Woven fabrics are understood and used as coarse and/or Gray Fabrics and not understood as Processed Fabrics then any process undertaken, would be process undertaken to be incidental or ancillary to activity of weaving only. The classification of such goods would be as Woven Fabrics Unprocessed only, when the tests prescribed by the law, as laid down by the Constitutional Bench and other decisions of the Apex Court are, applied. (H) Therefore, it has to be examined whether the fabrics, after they emerge from MONFORT MACHINES, in this case, the JEAN/DENIM TWILLS as woven, remain after the impugned operations/activities, JEAN DENIM TWILLS albeit singed, dusted washed calendared with Controlled Comprehensive Shrinking or they become Processed Fabrics. There is no material on record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5; 5207.10 for the year 1995-96, 1996-97, 1997-98. (J) Considering the Chapter Note to Chapter 52 of CETA, 1985, which reads as- In 1994-95 as 2. In relation to products of heading No. 52.06 to 52.12, bleaching, mercerizing, dyeing, printing, water proofing, shrink proofing, organdie processing or any other process or any one or more of the process shall amount to manufacture . The learned Sr. Advocate for the Revenue has relied upon para 6 in the case of Maharastra Fur Fabrics, 2002 (145) E.L.T. 287 (S.C.) which reads - 6.......... It follows that the words or any other process would have to be understood in the same sense in which, the process, including tentering, would be understood. Thus understood, a process alien to stantering/tentering would fall within the meaning of the proviso could, consequently, the benefit of notification cannot be availed by the respondent . to submit, that the process undertaken as MONFORT Machines and dampening by the Respondents herein on the fabric renders Sanforized standard shrinkage to the textiles and the process though not shrink-proofing would be covered by the Chapter notes to be a process of manufacture. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shrink Proofing, but it is Controlled Comprehensive Shrinkage . They submit in the grounds of appeal, (para 7 to 12 in this case), as to why the process Controlled Comprehensive Shrinkage (referred by them for brevity as CCS and herein after also as CCS) would not be an intermediate process or process at any prior stage of the process as arrived at by the Commissioner, in the impugned order. The grounds make out, CCS is not achieved by wetting or giving part shrinkage; as observed by Commissioner , but it is as per FAIR CHILDS TEXTILE DICTIONARY , submitted that Shrink Proof would not be zero shrink proof cloth, but could be cloth, as in this case, with Residual Shrinkage of 2.5% which experts have assessed to be internationally accepted Sanforizing standards for such fabrics. At the hearing, the material on record that the Sanforizing standards were being targeted and achieved was pointed out from SCN dated 18-6-98. It is also submitted that CCS is not reversible since whatever shrinkage is achieved, it cannot be reverted and is therefore, giving a lasting character to the fabrics, as stipulated by Apex Court in Sidheswari Cotton Mills, 1989 (39) E.L.T. 498 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the term shrinkproofing that shrinkproofing was not done at all. I cannot, therefore, suggest that shrinkage achieved in Monfort machines which has not resulted in shrinkproofing is covered by the term any other process . 17. The Learned Counsel for the party rightly argued that the term any other process can cover any process other than the ones specifically mentioned in the Chapter Note and in any case, cannot cover any prior stages of the processes enumerated in Note 3 of Chapter 52. The term any other clearly indicate that it should be a process other than the one mentioned before. However, it should have the character of the processes mentioned before, in view of the judgment of the Apex Court. 18. It has also been explained by the counsel that shrinkage achieved at various stages of processing are temporary in that the fabric would undergo further shrinkage as opposed to the position that in the case of shrinkproofing , the object is to ensure that the fabric subjected to shrinkproofing , does not undergo shrinkage even after repeated laundering. Expert opinions relied upon by the party are given by various experts from different parts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huttle looms has not been noticed, this aspect was not considered in taking the opinion. The definition given in the Textile Terms and Definition clearly brings out this difference . (iv) Considering the above submissions and material along with and the definitions of SHRINKAGE SHRINKAGE CONTROL, SHRINKING, SHRINK PROOFING, SANFORIZED, SANFORIZED PLUS, SANFORIZED PLUS-2 from FINISHING COTTON, ETC. extracted from FAIR CHILDS DICTIONARY herein above, it is apparent that Shrinkage Control could be a process, albeit only of Finishing , to facilitate care of the fabrics. It is not mentioned as a Process in FINISHING COTTON FABRICS , like the other process of Bleaching, Dyeing as are mentioned in Chapter Note 3. Therefore, if CCS is not understood as a Process , considering the point made in para 4.2 of the Boards order as follows - 4.2 According to the Supreme Court judgment, what is required is whether the process imparts any lasting change to the fabric. In the present case, the controlled compressive shrinkage imparts certain percentage of shrinkage (as decided by the manufacturer) which is irreversible and therefore permanent or lasting. It may be true that since 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed, resulting in incomplete or partially complete results to be covered by it. It has been, therefore, correctly held by the Commissioner that CCS to be not shrink proofing or any other process of manufacture by the Commissioner. The mere fact that the incomplete or partially shrink-proofed fabrics meet private patented standards of Sanforized, would not enable the process to be termed a complete process, as understood in the Trade or Market, as a process on the fabrics in question to render them Processed Fabrics as against Coarse Gray-Fabrics , which the cloth in this case is found and understood. In any case, the private patented Sanforized standards achieved, could not be considered as a process mentioned in Chapter Note. The Tribunal in the case of Ashima, 2003 (159) E.L.T. 771 (Tribunal) = 2003 (108) ECR 430 (Tri), has held that operations of dampening etc. on the very same machine i.e. MONFORT MACHINE, which is not rebutted, was essentially that of Calendering and Shrink Proofing or CCS was not additionally carried out. The result of an operation concluded by a machine cannot be different, till proved. Following the said decision, in this case also, there could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of COARSE GRAY CLOTH known and marketed as JEAN DENIM TWILLS and they do not result in and thus amount to manufacture of New Commercially different entity or transforms the base entity into other goods, and in absence of any material that the entity emerging and marketable are understood as processed goods and the Technical Dictionary giving an understanding of the like goods to be used in COARSE and or GRAY STATE only, there is no case of raising of any demands of duty in the case initiated by Show Cause Notice dated 18-6-98. The dropping of the same as ordered by the Commissioner cannot be found fault with. (N) (i) Board has taken the following point in the Section 35 E(1) order - 4.14: The Government of India, vide its notification 4/96 dated 4-3-96, has inserted the Explanation II to Notification 40/95 dated 16-3-95 and thereby has clarified that the exemption under the later notification will not apply to the products commonly known as denim Fabrics . In view of the above insertion, KGD are not eligible for the benefit of the notification 40/95 from the date of its issue i.e., 16-3-95 and hence it is not necessary to disallow the benefit on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Chapter 52 of the Central Excise Tariff Act, 1985 and or the Schedule annexed. An amendment is seen to have been effected to the same, only by Finance Act of 2001, by which separate heading No. 5207.10 5208,10 have been created for Denim Fabrics reading as Denim Fabrics , whether or not processed . Therefore, there is, no case to upset the finding of no manufacture as held by Commissioner upto this amendment enactment in the year 2001, or to restrict the same to 1-3-95 as is being made out by Revenue in this appeal. (iii) Once Board accepts the finding of the Commissioner that process does not amount to manufacture , that fact cannot change, due to interpretations flowing from notifications amendments as is being urged. (O) (i) Examining further, the plea of the remand order was to Assistant Commissioner in the proceeding remitted by the Tribunal and these should not have been decided or decided on merits by the Collector, it is found, the Tribunal in that case, after recording in - 14. We notice that the true impart and the ratio of the Hon ble Supreme Court judgment rendered in the case of M/s. Siddeshwari Cotton Mills has not been gone into by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge. We also find that in coming to this erroneous conclusion the Assistant Commissioner has depended merely on some write-up of Shri Veeraraghavan of M/s. COMTEC, Surveyors, Valuers and Assessors by profession. 16. In the last Para of this opinion as contained in page-21 of the Paper Book, it has been submitted as follows :- (iv) The process performed on the Monfort machines is for the reasons stated under Section (ii)(a) is only of compressive shrinkage nature and control of residual shrinkage of the fabric and hence it could be stated that the process does not lead to any other lasting changes to the fabric before and after processing. 17. The Assistant Commissioner has in para 6.2 of the Order-in-Original interpreted this to mean that compressive shrinkage amounts to lasting change. We cannot subscribe to this conclusion on the basis of this evidence, particularly in the light of the test report of the office of the Deputy Chief Chemist, Madras. Further, there is no detailed examination and analysis of the materials and the evidence relied upon in the show cause notice contained in para 5.0 already extracted above. They were of the view, that the additional evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of time. 11. The same view has also been expressed by various experts SITRA, Prof. H.T. Deo, NITRA and Shri S.S. Bhandari, which was the view expressed earlier by the Office of the Deputy Chief Chemist, Chennai. 12. The experts have also clearly opined that the application of foam for wetting the fabric done by vacuum foam technique in the Monforts range does not bring about any lasting change to the fabric and it is done to give dampening effect to the denim fabric. It has been categorically opined that it is to be considered as dampening and it is not a lasting change. Further, the opinion of Prof. Dr. H.T. Deo is categorical that I find that denim fabric has not been subjected to the process of designing either before sending into Monforts range or in the Monforts range, as I found the presence of size in all these samples . Therefore, there is no manufacture involved in the application of FMDM solution at all they argued . There could be therefore, no case or causes on merits to re-determine or hold that material as per remand order was not considered by the Commissioner. When the Assistant Commissioner s order is found to be having infirmities (refer Para 15 of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases where the facts are not all admitted or beyond dispute, there is considerable unanimity that the courts can, in exercise of their discretion , refuse that Certiorari, Prohibition, Mandamus or Injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364, Rajendra Singh v. State of M.P., (1996) 5 SCC 460 that even in relation to statutory provisions, requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived, while in the case of the latter, it cannot be waived. 23. We do not propose to express any opinion on the correctness or otherwise of the useless formality thereof and leave the matter for decision in an appropriate case, inasmuch as in the case before us admitted and indisputable facts show that grant of writ will be in vain as pointed out by Chinappa Reddy, J . The same view was taken in the case of Canara Bank v. Devi Dass Ors, (2003) 4 SCC 557, wherein the apex court without going into this the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds taken now do not help the appellants. (iii) Ground No. 6 is an recording of the operations/activities carried out and is not in contest and has been considered. (iv) Ground Nos. 6 to 11 only reiterate the Technical aspects of the shrinkage in fabrics. They do not advance the appellants case to rebut the findings of the Commissioner as regards any prior stages of processes, as made out in ground no. 8. Their Hypothesis has been found to be not faulty, along with Commissioner s findings on lasting character which is upheld. The grounds are of no help to the appellant. (v) The ground Nos. 12 and 14 plea for an interpretation of the legislature s intent about a Chapter Note, on which the Commissioner has arrived at in his findings, to be interpreted from the notification and wordings used therein. This is against all cannons of interpretation. The Tariff entry cannot be interpreted from the terms used in exemption notifications. This ground is required to be rejected. (vi) Ground No. 13 is made on non-cognizance by Commissioner, on Statements of Shri Vasudevan, General Manager (Operations), description of the Sanforising Process and Text Proof by J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture . 11. Aggrieved by the said order, the party has filed an appeal before the Tribunal. The Tribunal has set aside the orders on the ground that the question of manufacture is to be decided and thereafter the question of Notification is to be looked into. The Tribunal, found various infirmities in the order of the Assistant Commissioner. The Tribunal, as per its final order No. 334/99, dated 4-2-99, remanded back to the Assistant Commissioner concerned, for a de novo consideration. While considering the aspect whether the matter to be remanded to the Commissioner (Appeals) or to the Assistant Commissioner, the Tribunal was of the view that matter will have to go back to the Assistant Commissioner. The relevant observation as in page 13 of the Tribunal order, which reads as under: The question is whether the matter can be referred to the Commissioner (Appeals) to deal with the materials placed by the appellants and also to answer the points dealt with by the Assistant Commissioner. We would have been inclined to send the matter to the Commissioner (Appeals). However, we find that the Assistant Commissioner in the Order-in-Original has not properly come to grasp wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting decisions. He observed that Though the matter is remanded to the Assistant Commissioner by the Tribunal, the Commissioner, being a superior authority, has jurisdiction to decide the matter . It is settled position now that jurisdiction goes to the root of the matter and it can be raised at any stage. Though the reasoning given by the Commissioner appears to be palatable, it has no sanction under law. When the matter was specifically remanded to the Assistant Commissioner, the Assistant Commissioner is the only proper person to readjudicate the matter on remand. The jurisdiction as such cannot be conferred nor can be assumed with the consent. If the Commissioner wanted to adjudicate all the connected matters arising out of different show cause notices together, the best course open to the Department was to file an application for modification of the Tribunal s order. Either side should have filed an application requesting the Tribunal to modify the order in remanding the matter to the Commissioner in the facts and circumstances and based upon the reasons given by the Commissioner in the impugned order. Since this has not been done, the order as such is not sustainable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use when more than one process being dealt in the hands of same manufacturer, then instead of each process, the total processing involved is taken as manufacture . On the other hand, relying upon the decision of the Supreme Court in the case of Collector of Central Excise, Bombay v. Maharashtra Fur Fabrics reported in 2002 (145) E.L.T. 287, the Senior Counsel for the Revenue submitted that pre-shrunk which has taken place during the course of manufacture of product in question should be considered as an independent process covered by the term or any other processes in Chapter note 3 of Chapter 52. Whether pre-shrunk was an independent process as urged by the Revenue or was part of integral process is also required to be examined by the adjudicating authority. The question of eligibility of benefit or otherwise in terms of relevant exemption notifications would arise depending upon the clear finding whether process undertaken by the assessee amounts to manufacture or not and such other issues may be decided depending upon the clear finding on the issue of manufacture . Both the sides may make use of this opportunity and substantiate their respective claims by adducing addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly dried in series of steam heated drums. The fabric is taken out and inspected for faults or fabric defects and out into 100 metre length for dispatch. 24. The adjudicating authority relied upon the following technical expert opinion :- (a) Prof. (Dr.) H.T. Deo. Ph.D. (Tech.), D.Sc. Head, Division of Technology of Fibres and Textile Processing, University Department of Chemical Technology (UDCT), Mumbai. (b) The South Indian Textile Research Association (SITRA), Coimbatore. (c) The Northern India Textile Research Association (NITRA) [Linked to the Ministry of Textiles, Govt. of India), Ghaziabad]. (d) Shri S.S. Bhandari, B. Text (Bb), VDI (WG), M.B.A. (IIM A) with very rich experience in textile processing. After considering the above mentioned expert opinion, the adjudicating authority come to a conclusion that process undertaken by the respondents are of wetting and dampening and as of not a lasting character and the same cannot be held to be shrink proofing. 25. The contention of revenue is by processes undertaken by respondents shows that the controlled compressive shrinkage imparted to the machine is lasting one and therefore process passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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