TMI Blog1980 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-77 another sample was drawn. The test results reveal that the sample drawn on 30-11-77 contained 8.6% acrylic fibre and that drawn on 15-12-77 contained 11.8% of acrylic fibre. The percentage of non-cellulosic fibre was less than l/6th of the total weight of the yarn. Another sample drawn on 28-1-78 showed no presence of acrylic fibre. The Assistant Collector, after adjudication proceedings, confirmed the demand of duty on such yarn which was manufactured during the period from 30-11-77 to 27-1-78 @ Rs. 10 per kg. in terms of notification No. 133/77-CE, dated 18-6-77 as the petitioners had cleared the yarn in question manufactured during the relevant period at nil rate of duty without producing the proof of payment of duty @ Rs. 30/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, do not deny that they never urged this point before the lower Authorities. He contended that in view of the undisputed facts viz., that the raw material in this case comprised of material in which wool and acrylic fibre put together predominated, the petitioners should get the benefit of notification No. 133/77 irrespective of the presence of about 8% of acrylic fibre. According to him, the word 'partly' appearing in the notification reproduced below should be read to mean 'Predominantly', taking into consideration the sense in which yam under Item 18B(1) of the Central Excise Tariff is described: "In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts wool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 133/77 on the ground that this yarn, which is partly produced out of acrylic fibre, had already paid the duty of customs at the rate of Rs. 30 per kg. at the time of importation. He argued that for this purpose, it was not necessary that the yarn should be spun entirely out of acrylic fibre and that the wool content should be deemed to be yarn spun out of acrylic fibre, even if the woollen content predominates vis-a-vis acrylic content, as has happened in this case. He further contended that even assuming the presence of a small percentage of acrylic fibre made the yarn in question liable to payment of duty at the rate of Rs. 10 per kg. in terms of the aforesaid condition appearing in Notification No. 133/77, this conclusion should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that the petitioners case is clearly covered by the condition appearing in the main notification above the proviso which says that "where the yarn has been spun wholly or partly out of acrylic fibre, it shall be liable to duty @ Rs. 10/- per kg." 6. The Government further observe that the other contention raised by the petitioners that since the test report in respect of the sample drawn on 28-1-1978 did not show presence of any acrylic fibre, the period between 15-12-1971 i.e. the date when the earlier sample was drawn, which showed presence of acrylic fibre and 28-1-1978 should be governed by the later test report is also not tenable because the result of the test report could have only prospective effect and not retrospective e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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