TMI Blog1997 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... e use of the manufacture of tyres. The appellant-company supplies such customers the required goods in parallel loosely held together by cotton yarn. This arrangement of Rayon or Nylon yarns intercepted by cotton yarn to hold them together, is called `Tyre Cord Warp Sheet'. The question involved in these writ appeals is whether such warp sheet can be classified as Fabric or should be classified only as yarn. If it is Fabric, it will come under Tariff Item 22 and if it is yarn, it will come under Tariff Item 18. So far as the appellants are concerned, the said goods supplied by the appellant-company to their customers, had been classified in the books of the respondents under Tariff Items 19 or 22. Based on certain decision of the Calcutta H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. The appellant has sought for further direction in the said writ petition to finalise the classification under Tariff Item 22(1)(b). In W.P. No. 9016/84, the appellant-company sought for direction to the respondents to refund the excise duty collected in respect of Dipped fabric and warp sheet under Tariff Item 22(1)(b). In W.P. No. 9017/84, the appellant sought for a declaration to declare the proper classification for Dipped fabric and warp sheet under Tariff Item 22(1)(a). 3.The entire arguments of the appellant-company rested on the decision of the Calcutta High Court in Collector of Central Excise, Calcutta and Others v. Madura Coats Ltd., Serampore, reported in 1982 (10) E.L.T. 129 (Division Bench). No doubt, in that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... textile fabric. We are concerned with the product manufactured and sold by the appellant. It is wholly immaterial that once tyre cord fabric has, in the hands of the tyre manufacturer, undergone the process of rubberizing and is embedded in the tyre body the significance of the weft thread is greatly reduced. It may also be that in the more modern process of manufacturing tyres what is used is cabled rayon with hawser twists with the cords assembled in parallel order and rubberised without the intermediate process of weaving on a loom. The material on the record, however, indicates that the product manufactured by the appellant does not fall in that category. It is a woven fabric in which the intermediate process of weaving the weft thread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LP may not amount to laying down the law, it did amount to finality between the parties before Court. In this sense, he argues that the very same company having obtained a decision before the Calcutta High Court and the same having been affirmed by the Supreme Court, operates as a res judicata in the present case. We are of the opinion that even though the very same company is involved both in the appeals before us and in the judgment of the Calcutta High Court, the manner and method of manufacture has to be proved by the evidence because the factory at Madurai is certainly not the factory which was involved in the Calcutta High Court judgment. We are also of the opinion that on the facts of each case, the authority has a right to classify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, the authority is required to pass a considered order as to why he is classifying or re-classifying certain goods as falling under a particular tariff item. The proper officer has to consider the arguments for and against and pass a considered order. This order of the first authority will depend upon the facts of the case, namely, the manner and method of the production of warp sheets. Against such an order, as we already stated, an appeal lies. We are again of the opinion that the proper channel by which the appellant can redress his grievance, is to seek a considered order from the proper officer and then proceed to file an appeal if they are aggrieved. To approach the High Court straightaway under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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