TMI Blog2004 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable under Heading 52.07 of the Central Excise Tariff Schedule as claimed by the appellant or under Heading 59.06 as held by the Tribunal, and (ii) whether the extended period of limitation under proviso to Section 11A of the Central Excise Act, 1944 is invokable in the present case and consequently whether penalty under rule 173Q of the Central Excise Rules, 1944 is imposable on the appellant. 2.The two competing entries are as under :- Heading 52.07. Cotton fabrics (including fabrics covered under Heading Nos. 52.09, 52.10 and 52.11), - (a) woven on looms other than handlooms, and (b) subjected to the process of bleaching, mercerizing, dyeing, printing, water-proofing, shrink-proofing, organdie processing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal took the view that fabric manufactured by the appellants is impregnated one and the same, therefore, has to be considered as fabric impregnated with materials other than those mentioned under tariff 59.02 and 59.05; that fabrics also passes the muster of note 4 of Chapter 59 which note was at serial No. 5 after coming into force of the new tariff subsequently during the relevant period as being coated with materials other than materials under Heading 59.01 to 59.05 with coating visible to the naked eye. On analysing Chapter 59, it was noticed that the Chapter covers impregnated cotton and textile fabrics among other things. The Tribunal, in particular, noticed that process as applicable to any textile and does not change the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o naked eye and there is no mention about visible layer formation of the coating or impregnation and hence, the product cannot be classified under Heading 59.06. It is also submitted that since the test report of the chemical examiner was not correct and was not clear, the appellants sought re-test of the samples drawn or in the alternative cross-examination of the chemical examiner, but no re-testing as provided in Rule 56 was allowed by the Commissioner on the ground that the request was made beyond 90 days. In any case, it is submitted, the sealed samples are still available and the same can be got tested even now for the test of presence of visible layer formation. 7.On behalf of the respondents it is contended that a finding recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants from 1986 onwards and they were aware of the process adopted in manufacturing the end product by them. The Tribunal rejected this contention. Apart from the fact that there was difference of opinion even in the Department, the fact remains that the department officials had been regularly visiting the factory of the appellants and were in the know of the process of manufacture adopted by the appellants and to state that the appellants had played fraud on the department is difficult to sustain. In the circumstances, we think, the application of the extended period of limitation as provided under Section 11A of the Act is not correct. Therefore, that part of the order where the Tribunal has rejected the prayer of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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