TMI Blog2000 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the classification of the processed leno gauze cloth under Heading No. 58.03 and confirmed the demand of Rs. 1,29,895.38. A redemption fine of Rs. 15,000/- in lieu of confiscation of the goods, a redemption fine of Rs. 10,000/- in lieu of confiscation of land, building and machinery and a penalty of Rs. 5,000/-, was imposed. 2.The matter was heard on 2-2-2000 when Shri N.S. Kulkarni, Son of the Proprietor submitted that under the erstwhile Central Excise Tariff the goods in question were being classified under Item No. 19(1). While it was admitted that the fabric was gauze, it was contended that it was not covered by the definition as given in Note-3 under Chapter 58 of the present Tariff. The goods were cleared in roll form and the duty under Heading No. 52.06 had already been paid by their processors. The goods after bleaching were sold to Pharmaceutical Companies. It was also pleaded that there was no suppression. He relied upon the Madurai Collectorate's Trade Notice No. 67/90, dated 11-6-1990 as appearing at page T-38 of 1990 (48) E.L.T. In reply Shri V.M. Udhoji, DR submitted that it was an admitted fact that the goods in question were gauze which were specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fibres in which some of the warp ends are interlaced with each other in a leno weave. There are also plain weave gauzes not made with a leno. The cotton fabric is used primarily for blouses and surgical dressings, the silk, rayon gauze for dress trimmings. The term is sometimes applied to very sheer knitted fabric. Derived from the city of Gaza in the Near East." Gaze is a french term for gauze. In the same dictionary, 'leno' has been defined at page 349 as under :- "Leno : A fabric made with a leno weave; it is generally a lightweight, open weave fabric of cotton, rayon or other man-made fibres." 6In test report dated 24-4-1991, Principal of the. Textile Institute Echalkaranji had certified that the fabric sample supplied to the Institute by the Central Excise Deptt. along with their letter dated 19-4-1999 was gauze fabric. In reply to question No. 4, Dr. Khadim Hussain, Chemical Examiner, Grade-I, Central Excise Laboratory, Mumbai had categorically stated in the cross-examination by Shri N.S. Kulkarni that pattern of weaving in the fabric in question satisfied the definition as given in Chapter Note-3 under Chapter 58. On their own, subsequently, after the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Central Excise Authorities was sent for test and it had been referred to in the show cause notice. There is nothing to indicate that the nature of the product had undergone any change with reference to the sample drawn and got tested under the prescribed procedure. In the case of Ramalinga Choodambikai Mills Ltd. v. Govt. of India - 1984 (15) E.L.T. 407 (Madras), the Madras High Court had held that the representative sample could be taken to represent the given quantity manufactured unless it is shown that after taking the sample the production pattern had undergone a change. Para 7 from that decision is extracted below :- "7.The second ground of attack is that the result of the test reports can be applied only to the quantity of yarn manufactured on the date when the sample was taken and not for the entire period between 14-9-1966 and 20-10-1966. The contention of the petitioner is that it cannot be assumed that the count of yarn manufactured by the petitioner on subsequent days was the same as one found on 14-9-1966 and that the test report based on a sample of 840 yards cannot be taken to represent the entire 38638.2 Kgs. produced during the period. It must be remembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was September, 1986 to March, 1991. The assessee on their own sent the sample on 17-6-1991 without the presence of Central Excise officers. The test report is at page-15 of the paper book. It is extracted below :- "To M/s. Mangala Textiles, Hari-Prasad Mills Unit No. 3, 10/14, Hari-Prasad, Ichalkaranji. Sir, This is with reference to your letter dated 17-6-1991 along with a sample of cotton fabric of Leno Weave. As per your request we have studied the matter and our findings are as follows:- Analysis of the sample of your fabric shows that it is woven with the principle of cross weaving using a single weft thread. This fabric is technically known as simple or plain gauze. Whereas the fabric described inch.hd. 58.03 of Central Excise Tariff Act, 1985 is a variation of plain gauze since it is woven with the principle of cross weaving using two or more weft threads. Hence, in our opinion your fabric cannot be identified with the 'gauze' falling under Heading No. 58.03 of Central Excise Tariff Act, 1985. This is for your information only." Even this test report certified that the sample tested was technically known as simple or plain gauze. There is no reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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