of Central Excise, Ahmedabad Vs. M/S Susma Textile Pvt. Ltd  Insc 358 (5 May 2004)
& G.P. Mathur
C.A. Nos. 8559/1997, 1052/1998, 5010/1998, 3649/1999, 3707/1999, 4223/1999,
5557/2001, 6976/2001 and 8973/2003) RAJENDRA BABU, CJI:
question that falls for consideration in this batch of cases is as to the
classification of the bleached sheeting which is heavily sized and manufactured
by each of the respondents and whether the same falls under Heading 52.06 of
the Central Excise Tariff Act, 1985 [for short 'the Act'] or under Heading
59.01 as sought by them.
respondents are engaged in the manufacture of cotton fabrics which is stiff and
heavily sized with starch gum and inorganic fillers.
respondents classified this product under Heading 52.06 by declaring their
product as subjected to the process of bleaching and finishing.
later on, when the Department inspected the unit of the respondents, they
thought that the product in question will have to be classified under Heading
59.01. Sample of the product was taken for testing and the report thereto is
that the sample is in the form of open weave cotton fabrics heavily sized and
stiff with starch gum and inorganic fillers on treatment with hot water the
fabrics looses all its stiffness. On this material, a show cause notice was
issued to the respondents demanding differential duty for different periods.
The Assistant Commissioner, Central Excise, by his order made on 16.8.1989,
dropped the demand raised in the show cause notice by holding that the said
cotton fabrics were correctly classifiable under Heading 52.06 and approved two
classification lists accordingly.
matter was carried in appeal to the Collector [Appeals] who allowed the appeal
and affirmed the demand of duty by holding that the product in question is
specifically covered under Heading 59.01which provides a specific tariff entry
for stiffness textile fabrics. The matter was further carried to CEGAT. The
Tribunal held that the cotton fabrics though heavily sized do not have
permanent stiffness to be treated as similar to 'Buckram' and accordingly
classifiable under Heading 52.06 and not under Heading 59.01 of the Act. Hence
may, however, notice that in Collector of Central Excise, Aurangabad vs. Solapur
Zilla Vinkar Sahakari Federation., 1998 (104) ELT 402, the tribunal held that
stiffened fabrics generally used in the interior of garments having been
processed into bleached and grey sheeting by applying topioca starch, maize
starch, french chalk power and delomits which render the fabrics stiffening
effect, are classifiable under Heading 52.06 of the Act and not under Heading
59.01 thereof. The matter was carried in appeal to this Court in Civil Appeal
No.3965 of 1998 and this Court, on 22.2.1999, dismissed the same, both on the
ground of delay and on merits.
specific description of Heading 59.01, viz., textile fabrics coated with gum of
amylaceous substances of a kind used for the outer cover of book or the like is
satisfied in this case;
Explanatory Note to HSN made it clear that not only cloth, plain weave woven
fabrics, usually of cotton, linen or man-made heavily coated with gum or amylaceous
substances which is used for book binding, but also such cloth with other
end-uses, would get cover under this heading.
tribunal held that the Board by their instructions issued on 2.9.1988 had
clarified that for classifying such products under Heading 59.03, the textile
fabrics should have a continuous and adherent films or layer on one side of the
fabric surface and the fabric should be impervious and should satisfy the
conditions prescribed in Note 2 of Chapter 59.
also adverted to letter issued by the Ministry of Finance, Department of Revenue
dated 7.12.1989 wherein it had been confirmed that bleached and sized cotton
fabrics manufactured by them merit classification under Chapter 52 as these
fabrics were neither coated nor impregnated but only sized with starch. On
behalf of the Revenue, the contention put forth before the tribunal is that the
scope of expression 'Buckram and similar stiffened textile fabrics' could not
be restricted by reference to first half of the heading relating to coating and
should be interpreted in its ordinary manner and that if the stiffened fabrics
is similar to Buckram, tracing cloth, book binding cloth, etc., it would be
appropriately regarded as stiffened fabrics covered by sub-heading 5901 since
the general heading of processed fabrics falling under sub-heading 5206.
Further, the book binding cloth would be covered by the expression 'Buckram'
and similar textile fabrics of sub-heading 5901. Several text books and
dictionaries were also referred before the tribunal. All the contentions
advanced on behalf of the Revenue were refuted by the learned counsel appearing
for the assessees and elaborate arguments were submitted before the tribunal
that the product in question is not a 'Buckram' or something akin to 'Buckram'
inasmuch as 'Buckram' referred to permanently stiffened fabric and once the interstics
of cotton fabrics were filled and treated with gum, then alone it would come
under Chapter 59 and in the present cases the item is porous padded and the interstics
are not filled and, therefore, the product cannot go under Chapter 59 at all.
The tribunal noticed firstly as to the maintainability of the appeal and
thereafter on merits of the matter. The tribunal proceeded on the basis that
the burden of classification is on the Department and no evidence had been placed
by the Department to show that the product is a 'Buckram' and it requires to be
classified under Chapter 59 and Explanatory Note IV to Heading 59.01 indicates
that 'Buckram' and similar stiffened textile fabric of a kind used for that
foundations would fall under this heading. There is also an indication that
certain varieties of 'Buckram' and are similar fabrics made by pasting together
to such stiffened fabrics and used mainly in the manufacture of hat foundations
of Heading 65.07 would also be fall under this heading and that the textile
fabrics coated with gum and amylaceous substances of a kind used for paper
coverings of books or the like, tracing cloth, prepared binding 'Buckram' and
similar stiffened textile fabric of a kind used for hat foundation would be
covered under this heading. After adverting to certain definitions in the
Dictionary of Textiles held that an impregnated fabric is one in which interstics
between the yarn are to be completely filled with impregnating compound
throughout the thickness of the material. The definition of 'Buckram' and
Library Buckram also indicates that it is heavily sized. The definition of
sizing indicates that it is a generic term for compounds when applied to yarn
or fabric form a more or less continuous solid film around the yarn and
individual fibres. The chemical examiner in his report had stated that each of
the eight samples are in the form of open woven bleached cotton fabrics sized
with starch and each is somewhat showdy. On treatment with hot water, each
looses of stiffness.
between the yearn were not closed.
overall count is less than 51 as determined on the basis of yarns taken out
from the fabrics in each case. Therefore, the test result indicates that the interstics
are not filled in these cases and there is no permanent stiffness. The
requirement of heading 59 clearly shows that the textile fabric has to be
stiffened and the definitions which are relied by the Revenue indicates that
the sizing have to be heavy and the interstics have to be filled and the
stiffness has to be permanent; that the test results do not support the
department's case and also there is no specific finding that the material is a
also adverted to the tariff advice No. 36.84 dated 27.7.1984 issued to all the
Collectors indicating that the object of exemption is to cover such fabrics
which are treated only to achieve a temporary effect of sizing [stiffening] and
gloss and addition of wetting agents, optical whitener, fatty matter and
fillers are meant only to help padding process so as to give a temporary
brightness to sized fabrics, to soften the starchy film left on the fabric and
to give a better and fuller appearance. However, these additives get removed
from the fabric when the starch is washed up. Based on this material, the
appeal filed before the tribunal was rejected.
learned counsel for the appellants contended that the tribunal has gone on the
basis of issue of permanent stiffness and not dealt with other aspect whether
the fabric in question is heavily sized or not.
59.01 reads as follows:
fabrics coated with gum or amylaceous substances, of a kind used for the outer
covers of books or the like; tracing cloth; prepared painting canvas; buckram
and similar stiffened textile fabrics." In Fairchild's Dictionary of
Textiles, which is an authority to the text book on the matter, sets out what
'Buckram' means :
plain weave, coarse, open fabric heavily sized and used principally as
stiffener which is placed between the lining and surface cloth of the garment
to give it shape or form. Also used for hat shapes, book binding, etc. Made
with cotton, linen, hemp, hair etc. Also made by gluing two openweave, sized
cotton fabrics together.
white or plain collors. Also see Library Buckram. 2. Originally a costly
material from Bokhara, Southern Russia.
a rich 16th Century English woollen fabric used for church vestments."
"A heavy flat duck or Osnaburg, stiff and durable starch filled or pyroxylin
treated and given a vellum, linen-like finish. Used especially on library and
reference books." The Department in order to succeed in classifying the
products of the respondents to fall under heading 59.01 of the Act will have to
fulfil the following conditions:
the fabric in question is a stiffened textile.
That the stiffness has to be durable and permanent in nature.
That the fabric is heavily sized.
the stand of the respondents that the stiffness as contemplated under Chapter
59 has to be of permanent or durable nature as 'Buckram' is a fabric which has
a permanent stiffness. A fabric, which has undergone a process of padding by
applying natural starch on the side of the fabric, cannot be classified as
'Buckram'. The tribunal has found that the fabric of the respondents do not
have permanent or durable stiffness which is essential for a fabric to be
classified as 'Buckram' in view of definition as understood ordinarily and as
is referred to in the authoritative text books. The report given by the
Chemical Examiner on which the Department has placed reliance itself indicates
the process undergone by the respondents' fabric is only that of padding and
does not show any stiffness of permanent nature.
the several ingredients have to be satisfied, even if one ingredient is not
satisfied, namely, that the stiffness has to be of permanent and durable
nature, we do not think that the view taken by the tribunal calls for any
interference on our hands. In addition, we may notice that in none of the cases
presently involved, we have any heavily sized fabric. Therefore, that aspect
need not detain us.
circumstances, we do not think that these are fit cases where we should remand
the matter for fresh consideration on the question of heavily sized fabric. We
affirm the view taken by the tribunal and dismiss these appeals.