TMI Blog1987 (11) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... n one count in either weft or warp, the average count could not be ascertained under the statutory formula read with Tariff Item 19, as it existed prior to 18th June, 1977, and that, therefore, the duty on these fabrics should be payable under Tariff Item No. 19(1)(2)(f) i.e. at the tariff rate, as cotton fabrics, not otherwise specified . 2. In the appeal before us, the department has admitted that there was a problem as regards ascertainment of average count in respect of such fabrics which was resolved prospectively by issuing Notification No. 7/78 dated 17th Jan, 1978. In the order appealed against the Collector has given benefit of this Notification retrospectively and it is against this, that department has come up in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest count in the warp or weft, as the case may be. Accordingly the jurisdictional Assistant Collector shall determine the average count and if on this basis, it is found that the average count of the fabrics would be the same as was declared and approved earlier, no differential duty should be demanded. In case, on such re-determination, the average count is found to be on a higher side calling for higher duty, the demand could be worked out accordingly and the appellants shall pay the same. 4. We have heard Shri K.C. Sachar, Departmental Representative. None appears for Respondents. 5. Shri Sachar briefly submits that the Collector has granted relief in the matter before him by giving a notification of Govt. retrospective effect w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particular Notification here a formula is specifically prescribed for determining the average count. It is not open to departmental authorities to go beyond the Notification and to investigate whether average count of yarn in the fabrics is determinable in accordance with some different formula. 7. We have seen Notification No. 7/78 which amended Notification No. 226/77. This notification provided a new formula for determination of average count. It is reasonable to expect that the amendment became necessary to get over the difficulty that was being experienced in determining the average count of the yarn in such fabrics under the unamended Notification 226/77. Nevertheless, by no stretch of imagination can Notification No. 7/78 be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry order of the Appellate Collector, which is impugned in the present proceedings, was the subject of challenge in Appeal No. ED/662/83-D and five others, filed by other assessees which were heard and disposed of by this Tribunal by Order Nos. 501 to 506/1987-D dated 30-6-1987. In that order, the Tribunal expressed the view that the provisions of Notification No. 7/78 were not really in the nature of enlargement of the scope of Notification No. 226/77 dated 15-7-1977. It only explained the manner of determining the average count of cotton fabrics in which yarn of different counts had been used in the warp and weft or both. Earlier the formula did not cover such a contingency but that would not mean that the average count of such fabrics was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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