TMI Blog1989 (11) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... stt. Collector and by his order-in-original held that the product in question was classifiable under Tariff Item 19(III) and 22(III) as the base is cotton, artificial silk or any other fabric. Both the lower authorities rejected the contentions of the appellants to classify the product under Tariff Item 68. In this appeal, the appellants have challenged the correctness of the orders passed by the lower authorities and have sought in this appeal for classification of their product under Tariff Item 68. 3. The Assistant Collector while passing the order-in-original has based his findings on the basis of the Chemical report. The Asstt. Collector has rejected the contention of the appellants that the base material for the manufacture of the final product is knitted materials. He has held the base material as man-made fabrics. He has relied upon the description as given in Tariff Item 22. He has observed that the fabric is constituted by knitting together two materials, inter-laced together and may be by any process. The fabric, it must be understood is a woven material. The weaving may take any form of knitting, felting or even knotting. The Asstt. Collector has also observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in this appeal have challenged the correctness of the orders of the lower authorities in which the lower authorities have held the material to be coated fabric. It is the case of the appellants in this appeal that under any circumstances the product could not be considered as a coated product. They have stated in their appeal that the products are sheets of foamed vixyl having thickness ranging from 0.92 to 1.55 supported with Staple knitted material on one side. They have also relied upon the test report conducted by the Department in which it is stated that the product contains less than 23% of man-made viscose yarn or fibre in the form of staple knitted material . Staple knitted material used in the manufacture of the said plastic (to the extent of less than 23% of total weight) is not a fabric inasmuch as it is knitted material. They have stated that the product contains more than 75% of foamed plastic material (PVC Compound) on its total weight in its final stage of manufacture. They have further submitted that what is relevant for the purpose of excise duty is the end product and not the raw material utilised for its manufacture. They have relied upon the very test repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for considering a fresh plea as an additional ground by the Department at this late stage. It is their case that the matter is fully covered by citations relied upon by them and the Tribunal can decide the case on merits as all the materials are available on record. 10. We have considered the submissions, gone through the records and the various citations referred to by both the parties and also the literature placed before us by the Department. It is not necessary for us to consider the various submissions placed before us or to the various statements and counter statements made by them. As both the sides have failed to bring to our notice the latest order of this Tribunal on this point which is reported in the case of Collector of Central Excise, Hyderabad v. Fenoplast (P) Ltd., Secunderabad [1989 (42) E.L.T. 659 (Tribunal) = 1989 (14) ETR 417]. Though the appellants case before Bombay High Court (1988 (36) E.L.T. 106) was pertaining to PVC leather cloth containing only 10% cotton fabric but the observations made by the Bombay High Court (supra) in this case is relevant for considering classification of the product in hand. The contentions raised by the learned Departmental Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tios laid down in the case of Sheel Thermoplast [1988 (36) E.L.T. 106 Bombay] which in turn have relied on the ratio laid down by the Supreme Court in the case of Collector of Central Excise, Calcutta v. Multiple Fabrics Pvt. Ltd. (1987 (29) E.L.T. 481). This Tribunal in this above cited case Collector of Central Excise v. Phenoplast (referred supra) has held the product classifiable under Item 68 and rejected the prayer of the Department for considering classification under Item 22B. It has observed that the base material is not important. In the instant case, cotton fabric is only 23% and the finished product is referred to as staple knitted material so to treat the finished product as fabric much less as cotton fabric would be incorrect. The Bench in the case of Fenoplast (referred supra) has further observed after relying on para 5 of the Bombay High Court judgment in Sheel Thermoplast [1988 (36) E.L.T. 106 Bombay] at para 22 as follows - I agree with the well established proposition that where the Statute provides a definition, we have to strictly go by the said definition. Going strictly by the definition of cotton fabrics given under Tariff Item 19, I cannot ignore the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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