TMI Blog2009 (2) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... product is classifiable under 5803 - since revenue not included in appeal the persons on whom penalty imposed and buyer from whom goods confiscated, we hold that penalty was rightly set aside by Commissioner - E/2796/2004 - A/479/2009-WZB/AHD, - Dated:- 27-2-2009 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri Sameer Chitkara, SDR, for the Appellant. S/Shri S.J. Vyas and J.C. Patel, Advocates, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - The issue for consideration in this case is the classification of Cotton Bleached Mosquito Net Fabrics which the Department proposes to consider as Bleached Leno Gauze fabric and classify the same under CETH 58.03 whereas the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Del.)] wherein it was held that leno gauze cloth intended for use in the manufacture of plaster of bandages is classifiable under specific heading No. 58.03 and not under general heading No. 52.06. The ld. Advocate on behalf of the respondents submits that the Commissioner (Appeals) had arrived at the correct conclusion based on the facts. He took us through the chapter notes and notes under relevant headings to support his contention that gauze fabrics is classifiable under between 50 to 55 and not under 58.03. He also submitted that leno gauze fabrics as well as plain gauze fabrics have a common end use and as mentioned in the HSN both can be used for manufacture of bandages. In fact he drew our attention to the fact that gauze is gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as open weave fabric and therefore is not covered by 5803. The ld. SDR has produced a letter from the Chemical Examiner dt. 24-8-2004 wherein he has clarified that the warp threads are called crossing threads and standing threads. It has to be noted that basically this letter only explains the meaning of warp threads in technical parlance and as understood by the trade which had not been explained in the original test report. Obviously so because it is generally assumed that when technical matters are dealt with, technical meaning are assigned to the terms used. Once the meaning as clarified by the Chemical Examiner is assigned, the test report would read as under :- "Each of five samples is cut piece of white open weave fabric. Warp yarns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 803 only. What comes under Chapter 52 to 55 is plain loosely woven fabrics and plain weave and not leno weave fabrics under consideration here. While the Chemical Examiner's opinion and the notes under different chapters are highly complicated and very technical in nature and from the discussions above what comes out is that the product manufactured by the respondents was leno gauze fabrics woven as per leno weave method and as per the Note 3 of chapter notes to Chapter 58 and the Note below Chapter 5803, the same is classifiable under 5803 only. The ld. Advocate on behalf of the respondents pointed out that the Note below Chapter 5803 providing that the heading does not apply to plain loosely woven fabrics of plain weave such as thus gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actured and cleared by them to various buyers in the guise of mosquito net fabrics. This shows that both the buyer and the manufacturer were very clear that the product manufactured and supplied was leno gauze fabric only and not mosquito net fabric. 3.5 The ld. Advocate pointed out that there cannot be part appeal. There is no discussion in the appeal memorandum about confiscation, penalty etc. It is noted that Revenue has not included Shri H.N. Shah, Managing Director of M/s. Neptune Textile Mills Ltd., Shri Anilbhai V. Shah and M/s. Gujarat Healthcare in the appeal which was necessary since penalty has been imposed on both the individuals and goods belonging to M/s. Gujarat Healthcare have been confiscated. Thus they did not get an o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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