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TMI Blog1984 (7) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... includes any substance which has been made inter alia, from yarn by a process of knitting. Then the petitioners have referred to certain standard Books and Nomenclatures and stated that these nets which they are manufacturing were also subject-matter of levying duty under the Sales tax authorities and they have treated these nets as fabrics. It appears that the petitioners were no doubt paying the duty as demanded by the respondents. But in September, 1981 the petitioners requested the respondent No, 2 to classify the product as falling under Tariff Item No. 22 of the First Schedule of the Central Excises and Salt Act, 1944. The petitioners pointed out that a similar question was raised in another matter of M/s. Garware Marine Industries Ltd., formerly known as Modern Nets Ltd. who were also manufacturing nets for the past several years and were clearing fish-nets as knitted fabrics. It was averred in the petition in para 8 that the Excise Authorities in Bombay had classified these identical nets manufactured by Messrs. Sadhana Knitters as falling under Tariff Item No. 22. A copy of that letter was also annexed to that petition. 4. The petitioners therefore addressed a letter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Parliament has designated and nominated to decide certain disputes must be allowed to discharge certain functions. However, the powers of the High Court to intervene under Article 226 are not to circumvent or limited by any such fetters by not approaching the authorities of appeal or revision. 9. In this connection, the learned Counsel for the petitioners invited our attention to paras 19 and 20 of the petition which deal with a specific ground as to why the petitioners were forced to approach this Court at this stage. The grounds given by the petitioners in not adopting the remedies under the Act are to be considered by this Court at the time of deciding whether or not this Court should exercise its extraordinary powers under Article 226. If the grounds are given which are found to be satisfactory, this Court would be loathe to decline jurisdiction. This is a matter where a citizen, the petitioners are being taxed under a taxing statute. In such matters the High Court should always see whether a petitioner should be denied the relief merely on this technical ground. In our opinion, the grounds set out by the petitioners in paras 19 and 20 are quite sufficient to grant the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector. 11. The short question which arises for the decision in this case is whether the fishing nets falls within the Tariff Item in the First Schedule at Entry No. 22. The Entry No. 22 of Tariff Item of First Schedule of Central Excises and Salt Act, 1944 is as follows :- "Man-made Fabrics - Man-made fabrics means all varieties of fabrics manufactured either wholly or partly from man-made fibres or yarn and includes embroidery in the piece, in strips or in motifs, fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials and fabrics covered partially or fully with textile flocks or with preparations containing textile flocks, in each of which man-made cellulosic fibre or yarn, or (ii) non-cellulosic fibre or yarn, predominates in weight :" We are not concerned with the other parts of the Entry as this petition can be disposed of only on the construction, which is to be put on the words used in this Item, that is the meaning to be attached to the word 'Fabrics' as used in this Tariff Item No. 22. The learned Senior Counsel, Shri Bhabha, first of all pointed out that this Entry is very clear. This E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a very wide meaning and it will apply to any manufacture from fibres, filaments, or yarns, natural or artificial, obtained by interlacing. In the Annual Book of ASTM defines cloth as 'any textile fabrics' but specially designed for apparel domestic or industrial use. In addition to this, the learned Counsel referred to Exhibit 'C' which is part of the Paper Book. 13. As per the Brussels Trade, Nomenclature the fishing nets is covered under Chapter 59.05. The Chapter 59 is under Section XI which covers Textile and Textile Articles. The relevant Section is as follows :- "Nets and Netting made of twine, cordage or ropes and made up fishing nets of yarn, twine, cordage or ropes. These products are of open mesh knotted fabrics made (either by hand or machinery) of the twine, cordage or rope of the previous heading. They are classified here whether they are simply lengths of netting or in the forms of nets made directly of twine, cordage or ropes or assembled from pieces of netting made of these materials. The presence of handles, rings, weights, floats, cords or other accessories does not affect the classification of the goods in this heading. This heading is restricted to these ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this judgment, arose in respect of Entry No. 18 and the Court had occasion to consider the difference between twine and yarn. While interpreting that Entry, the Division Bench of this Court held that the yarn must have two characteristics. Firstly, it must be a spun strand and secondly, such strand should be primarily meant for use in weaving, knitting or rope-making. The twine yarn satisfies both the conditions in this case. The question in this case arose whether the nylon twine can be considered to be a specific type of nylon yarn. The Court further held that it is twisted or cabled yarn. In commercial parlance also nylon twine is considered as a kind of nylon yarn. Although it is a special type of yarn which is prepared, namely to make it suitable for being utilised in the manufacture of fishing nets or ropes, yet after the special process being applied to it, it retains its character as a nylon yarn and no new product emerges. In this case also the Collector had classified the goods under Entry No. 68. This case although does not deal with the concept of fabrics, certainly furnishes guidance to understand what is the difference between twine and yarn and once it is held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item No. 22 which used the words 'Man-made fibres' or 'yarn'. 17. The Collector also thought that fish-nets are not known as fabrics in the common trade parlance. We are afraid that this finding which is made by the Collector does not seem to be based on any evidence whatsoever which was led before him in the shape of affidavits or any other manner. Therefore this cannot be a correct way of looking to decide whether or not a particular product would fall within the Entry. 18. The Collector has also emphasised that it is not used as such. Perhaps he wanted to suggest that the user of the product is relevant to classify the goods of which description is given in the Schedule. We are afraid this criteria is absolutely unwarranted and irrelevant to find out whether a particular product falls in the description of goods given in the Schedule of the Central Excises and Salt Act, 1944. The fourth reason given by the Collector was that this special type of machine which is used in the manufacture of this net does not involve knitting or weaving process. We are afraid that this particular comment is not justified at all, because the very fact that a fabric is constituted by uniting tog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is put may not be relevant. In our opinion, in view of this observation of the Supreme Court, it would be difficult to sustain the judgment of the Assistant Collector. 20. In the same judgment it is also important to bear in mind that the Supreme Court has said at page 303 as follows : "It must be remembered that the concept of textiles is not a static concept. It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as 'textiles'." In our opinion, in view of the clear observation of the Supreme Court, it would be difficult to say that if a material, in this case either man-made fibre or yarn which is the constituent of a frame, if it is woven, knitted and felted, it must give rise to a fabric. The compounding of various laces intertwining either by way of knotting or knitting, involves a process of putting together. Once this process of putting together is complete a product which is formed is certainly a fabric in the common trade parlance. In our opinion, the word 'fabric' which has been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eening, felts, reinforced plastics, ropes, blend paper, papermakers' felts, tires, and the grey fabric used to back cloth to be roller printed. 23. Next the learned Counsel also invited our attention to the dictionary meaning of the word 'net' which in our opinion clinches the issue. As the Oxford Dictionary describes the word 'net' as a fabric of twine, cord, hair, etc. In our opinion as we have stated earlier, it is not strictly necessary to go through this dictionary meaning at all. In view of the fact that fabric must inherently involve some compound of material and once it is found that the material is woven and knitted into a form or shape brought out by this material, that would result in a compound called 'fabric'. In our opinion therefore the view of the learned Assistant Collector was vitiated by an error apparent on the record and therefore it was obligatory on this Court to intervene at this stage on the interpretation of words of entry of Tariff Item No. 22. Looking at the words and giving the ordinary, clear and significant meaning of the words used in Tariff Item No. 22, we hold that fishing nets are a fabric within Tariff Item No. 22 of the Central Excises and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. This authority does not in any way help the respondents to say that the word 'fabric' used in Entry No. 22 does not cover the fish-nets at all. In fact, it was not for consideration before the Supreme Court at all. The learned Counsel for the respondents however maintained that if we look to the entries under Tariff Items 16 to 22, they must mean and they must be interpreted to mean that all these products or all these goods must be by its nature textile. As we have observed earlier the word 'textile' is not defined in the Act. The Supreme Court had an occasion to consider this concept of textile in the authority referred to above. In our opinion, giving the widest meaning to the word 'textile' as the Supreme Court has done in that case which we have referred to earlier, we are afraid that this contention cannot be accepted and will have to be rejected. 26. Thirdly, the learned Counsel for the respondents, then attempted to make a distinction between the process of knitting and knotting by stating that knotting does not amount to weaving at all. This argument we are only mentioning to reject the same, because, in fairness, after seeing the material sample before us we are sati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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