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TMI Blog1994 (2) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... edominance to the final product and not to the base fabric. This was evidently done because the attention of the Bench was not invited to the proviso. As indicated hereinabove, while setting out T.I. 22, the proviso is omitted which, however, has material bearing. It is not known what would have been the conclusion if the proviso would have been noted. Thus the matter is placed before a Bench of three Judges - 3094-95 of 1989 - - - Dated:- 22-2-1994 - B.P. Jeevan Reddy B.L. Hansaria, JJ. [Order]. - The question in this appeal is whether `rexin cloth' produced by the respondent falls under Tariff Item 19-III of the Schedule to the Central Excise Act, as it obtained at the relevant time. The Tribunal has held, by a majority of 2:1, that it does not. The Revenue is assailing the majority opinion in this appeal. 2. Initially, the respondent had applied for classification of the said product under T.I. 19-III but later by their letter dated March 3, 1981 they contended that their product does not fall within the said Tariff Item. When the department did not agree with their contention, they submitted a classification list under T.I. 19-III under protest. In pursuance of ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either wholly or partly from cotton and includes dhoties, sarees, chaddars, bedsheets, bed spreads, counterpanes, Table-cloths, 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, if (i) in such fabrics cotton predominates in weight, or (ii) such fabrics contain more than 40 per cent. by weight of cotton and 50 per cent. or more by weight of non-cellulosic fibres or yarn or both : Provided that in the case of embriodery 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 plastic materials and fabrics covered partially or fully with textile flocks or with preparations containing textile flocks, such predominance or percentages, as the case may be, shall be in relation to the base fabrics which are embroidered or impregnated, coated or laminated or covered, as the case may be - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered partially or fully with textile flocks or with preparations containing textile flocks, such predominance shall be in relation to the base fabrics which are embroidered or impregnated, coated or laminated or covered, as the case may be. (Sub-items (1) (2) omitted as unnecessary) (3) Fabrics impregnated coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials. The duty for the time being leviable on the base fabrics, if not already paid, plus 30% ad valorem. 10% of the basic duty chargeable (Sub-item (4) omitted as unnecessary) Explanation I. - 'Base fabrics' means fabrics falling under sub-item (1) of this item which are subjected to the process of embroidery or which are impregnated, coated or laminated with preparations of cellulose derivatives or other plastic materials or which are covered partially or fully with textile flocks or with preparations containing textile flocks. .................................. 22B - COATED TEXTILE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords refer not to the final product manufactured by the respondent but to the 'base fabric' which expression has in turn been defined in Explanation - I. The learned counsel says that the proviso expressly and exclusively deals with the predominance and percentages referred to in clauses (i) and (ii), since it says that in the case of fabrics impregnated, coated etc. with the aforesaid materials, such predominance or percentages, as the case may be, shall be in relation to the base fabrics which are impregnated, coated or laminated or covered, as the case may be. The counsel further says that Explanation - I makes the matter still clear by defining the basic fabrics to mean fabrics falling under sub-item (I) i.e., plain fabrics which are subjected to the process of impregnation, coating, etc. 8. The learned counsel for the Revenue relies upon the language of T.I. 22 which is more or less identically worded to emphasise his submission with the difference that while clauses (i) and (ii) in Tariff Item - 19 refer both to predominance and percentages, clauses (i) and (ii) in Tariff Item - 22 refer only to predominance. 9. According to Sri Sorabjee, however, what has been mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the higher percentage of PV.C. Compound in commodity, it becomes difficult to treat the ultimate goods as man-made fabrics for holding that it is covered by Item 22. Upon this analysis it follows that the Tribunal came to the correct conclusion when it held that the goods were not covered by Item 22 and, therefore, the residuary item 68 applied. All these appeals are without any merit and are dismissed. Each of respondents should be entitled to its costs." 12. A reading of the above paragraphs (3) and (4) indicates that the learned Judge has given two reasons for his conclusion, namely, (1) since the P.V.C. Compounding was done simultaneously with the weaving of the fabric, there was no pre-existing base fabric and (2) having regard to the higher percentage of P.V.C. Compound in the ultimate product, it cannot be treated as a man-made fabric within the meaning of T.I. 22. Though the learned counsel for Revenue sought to distinguish the first ground given by the Bench saying that in that case the P.V.C. Compounding was done simultaneously with the weaving of the fabric, the said distinction is, in our opinion, without a difference. It does not matter whether the P.V.C. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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