Sen, J. - (1.) This is an appeal by the Collector of Central Excise against an order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). The controversy in this case is about the classification of a particular variety of fabric known as Sort No. 89225 manufactured by the Gaekwar Mills Limited, the respondent herein. There is no dispute regarding the composition of this fabric which contains 33% polyester, 32% viscose and 35% cotton. Polyester is a non-cellulosic man made fibre. The case of the Collector of Central Excise is that the fabric falls under Item 19 of the Central Excise Tariff Schedule, whereas the CEGAT has taken the view that it falls under Item No.22 of the Tariff Schedule.
(2.) Relevant extracts from the aforesaid Tariff Items are given below:- "Item No.19, Cotton Fabrics. "Cotton Fabrics" means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties, sarees, Chadders, bedsheets, counterpanes, table-clothes, embroidery in the piece, in strips or in motifs and fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials, 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: Explanation II:- Where two or more of the following fibres, that is to say, (a) man made fibre of cellulosic origin (b) cotton (c) wool (d) silk (including silk noil) (e) jute (including Bimilipatnam jute or mesta fibre) (f) man-made fibre of non-cellulosic origin (g) flax (h) ramie in any fabric are equal in weight, then such one of those fibres the predominance of which would render such fabric fall under that Item (hereafter in this Explanation referred to as the applicable Item) among the Items Nos. 19, 20, 21, 22, 22A and 22AA, which read with the relevant notification, if any, for the time being in force issued under the Central Excise Rules, 1944, involves the highest amount of duty, shall be deemed to be predominant in such fabric and accordingly such fabric shall be deemed to fall under the applicable Item. Item No.22. 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 and fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials, in each of which man-made (i) cellulosic fibre or yarn, or (ii) non-cellulosic fibre or yarn, predominates in weight: Provided that in the case of embroidery in the piece, in strips or in motifs and fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials, such predominance shall be in relation to the base fabrics which are embroidered or impregnated, coated or laminated, as the case may be. ********** Explanation II:- This Item does not include glass fabrics or fabrics falling under Item No.19 or Item No.21. Explanation III:- Explanation II under Item No.19 shall, so far as may be, apply in relation to this item as it applies in relation to that item."
(3.) The Tariff Entries are quite clear and there is no ambiguity as to their meaning. In order to bring the fabric manufactured by the respondent within "Cotton Fabrics", the Collector will have to establish that in such fabric cotton predominates in weight or such fabric contains 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. Neither of the two conditions has been fulfilled in this case. It is not the case of the Collector that even though only 35 per cent of the fabric is made out of cotton, such cotton exceeds the combined weight of polyester or viscose fibre which account for 65 per cent of the fabric. "Predominates in weight", in this context, must mean weight in excess of the combined weight of the other two types of fibres. There can be a second type of case where any fabric may contain more than 40 per cent by weight of cotton and 50 per cent or more by weight of non-cellulosic fibre (polyester in this case) or yarn or both. In such a case, even though cotton does not predominate, the fabric will be treated as cotton fabric. That is a legal fiction which does not come into play in this case because the fabric contains only 35 per cent cotton and 33 per cent polyester (non-cellulosic fibre). It is not the case of the Department that the weight of cotton is more than 40 per cent of the fabric and the weight of non-cellulosic fibre is 50 per cent or more.;