TMI Blog1985 (4) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... med) are called Friction Cloth by them. The dispute in the present case is whether this Friction Cloth would fall under Tariff Item 16A (2) relating to rubber products as claimed by the appellants or under Tariff Item 19(1)(b) relating to cotton fabrics as held by the lower authorities. 2. When the appellants received show cause notices in this regard, they had sent replies and, after adjudication, the Assistant Collector of Central Excise, Mysore, had, under his order dated 14-10-1982, classified the Friction Cloth manufactured by the appellants under Tariff Item 19 (1)(b) and called for payment of duty on that basis. This finding had been confirmed by the Collector of Central Excise (Appeals), Madras, under his order dated 15-1-1983. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries v. Union of India [1983 E.L.T. 54]. But it was pointed out to him in this connection that these two decision did not directly deal with the question of classification, but with the question of excisability of the Friction Cloth manufactured by these parties in the said cases, who had contended that the product manufactured by them would not be excisable as it was an intermediary product used captively by them. It was pointed out to Shri Kohli that no such contention had ever been put forward by the present appellants, either before the lower authorities or even in the appeal memorandum before us and, therefore, the said two decisions may not apply to the facts of the present case. He then relied on Tariff Advice No. 49/84, dated 1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions in 1984 (18) E.L.T. 569 (Lakshmi Card Clothing Mfg. Co. Pvt. Ltd. v. Collector of Customs, Madras); and 1983 E.L.T. 1216 = 1983 ECR 1093 (M/s. International Conveyor Ltd., Aurangabad v. Collector of Central Excise, Bombay) in this connection. So far as the order of the Assistant Collector dated 21-3-1985 is concerned, he pointed out that the order was on a price list and not on a classification list. He further relied upon the Circular Instructions No. 15/82, dated 21-7-1982 of the Bangalore Collectorate as supporting the contention of the department. He pointed out that under the same the subject goods would be classified under Tariff Item 19(1)(b), taking into consideration the base material as also the definition in Section 2(f)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present instance, the base material is cotton fabric made of cotton yarn only and the further process is one of rubberisation. Therefore, it is only the predominance of cotton in weight that would count as mentioned earlier. It had been seen that the Chemical Examiner s Report that cotton does not predominate in the subject goods as the cotton content by weight is only 47.1 %. It would, therefore, appear that the subject goods would not be classifiable as Cotton Fabrics under Tariff Item 19. The 40% test mentioned under that item would not apply to the subject goods as the same would apply only with reference to fabrics containing cotton and non-cellulosic fibres or yarn. 10. In the decision in 1984 (18) E.L.T. 569 Lakshmi Card Clothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of cotton not predominating in weight. As Shri Kohli points out, this view has been subsequently accepted by the Adjudicating Authorities also as found in the orders dated 8-1-1985 and 21-3-1985 produced by Shri Kohli. No doubt, Shri Tayal contends that the order dated 21-3 1985 was on a price list. But on a perusal of the order, it is seen that the Assistant Collector had, in the said order, held that it is very clear the goods (Friction Cloth) fall under Tariff Item 16A(2) and it was on that basis that he was approving the price list also. 12. In view of the above circumstances, we hold that the subject goods a classifiable under Tariff Item 16A(2) as claimed by the appellants. The appeal is accordingly allowed and the orders of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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