Collector of Central Excise, Bombay Vs. Maharashtra Fur Fabrics Limited
EmailAppeal: Civil Appeal No. 685 of 1995
(From the Judgment and Order dated 29.4.1994 of the C.E.G.A.T. in Order No. E/254/95-D in Appeal No. E/4217/90-D)
(From the Judgment and Order dated 29.4.1994 of the C.E.G.A.T. in Order No. E/254/95-D in Appeal No. E/4217/90-D)
Petitioner: Collector of Central Excise, Bombay
Respondent: Maharashtra Fur Fabrics Limited
Apeal: Civil Appeal No. 685 of 1995
(From the Judgment and Order dated 29.4.1994 of the C.E.G.A.T. in Order No. E/254/95-D in Appeal No. E/4217/90-D)
(From the Judgment and Order dated 29.4.1994 of the C.E.G.A.T. in Order No. E/254/95-D in Appeal No. E/4217/90-D)
Judges: SYED SHAH MOHD. QUADRI & Y.K. SABHARWAL, JJ.
Date of Judgment: Sep 24, 2002
Appearances:
Mr. K. Swami, Mr. K.C. Kaushik and Mr. B. Krishna Prasad, Advocates for the Appellant.
Mr. Joseph Vellapally, Senior Advocate, Mr. Rajan Narain, Ms. Sonu Bhatnagar and Mr. Ajay Aggarwal, Advocates with him for the Respondent.
Mr. Joseph Vellapally, Senior Advocate, Mr. Rajan Narain, Ms. Sonu Bhatnagar and Mr. Ajay Aggarwal, Advocates with him for the Respondent.
Head Note:
EXCISE
Central Excise Tariff Act, 1985
Schedule – Heading 60.01 – Central Excise duty – Classification of goods – Exemption notification 109/1986 dated 27.2.1986 as amended by notification dated 19.1.1988 granting exemption from duty in respect of sliver pile fabrics falling under heading 58.01 or 60.01 of schedule to the Tariff Act – Such exemption not available if the product is subjected to the process of bleaching, dying, printing, shrink proofing, tentering, heat-setting, crease-resistant processing or any other process or any two or more of these processes – Assessee manufacturing high fur fabrics by sliver knitting process, claiming the exemption in terms of the above notification – Assistant collector denying the exemption on the ground that the assessee was using the process of stentering – Collector (appeal) affirming the view of the assistant collector – Tribunal on appeal however holding that since no process of stentering/tentering was being carried out by the assessee it was entitled to the exemption under the notification in question – Whether tribunal justified in allowing the exemption to the assessee. Held, since the process adopted by the assessee was analogous to stentering as it was drying the fabric by making the fabric pass through the hot air stenter the benefit of exemption under the notification cannot be made available to it.
Held:
A careful reading of the proviso to the notification would show that by resorting not only to the process of bleaching, dyeing, printing, shrink proofing, tentering, heat-setting, crease-resistant processing, but also to “any other process or any two or more of these processes”, the respondent would lose the benefit of the exemption. It is a well established principle that general terms following particular expressions take their colour and meaning as that of the preceding expressions, applying the principle of ejusdem generis rule, therefore, in construing the words “or any other process”, the import of the specific expressions will have to be kept in mind. It follows that the words “or any other process” would have to be understood in the same sense in which the process, including tentering, would be understood. Thus understood, a process akin to stentering/tentering would fall within the meaning of the proviso and, consequently, the benefit of the notification cannot be availed by the respondent. (Para 6)
Even accepting the tribunal’s finding that the process does not strictly amount to stentering, it cannot be disputed that the process adopted by the respondent is analogous to stentering, as admittedly, the respondent is drying the fabric by passing through the hot air stenter. (Para 9)
In this view of the matter, the proviso clearly applies and the respondent, therefore, is not entitled to the benefit of the notification. The order under appeal is set aside. (Para 10)
JUDGEMENT:
ORDER
1. This appeal is filed by the collector of central excise, Bombay against the order, no. E/254/94-D, of the customs, excise and gold (control) appellate tribunal in appeal no. E/4217/90-D dated 29th April, 1994. By the impugned order, the customs, excise and gold (control) appellate tribunal (for short, ‘the tribunal’) set aside the order of the collector (appeals), Bombay, affirming the order of the assistant collector holding that the respondent is entitled to the benefit of notification no. 019/1986-C.E. dated 27th February, 1986, as amended by notification no. 3/1988-C.E. dated 19th January, 1988 (for short, ‘the notification’).
2. The question that arises for consideration is: whether the respondent is covered by the proviso inserted in the notification?
3. The respondent-assessee manufacturers high fur fabrics by sliver knitting process. In classification list no. 1/1987 dated 10th March, 1987 filed by the respondent, the product was classified under heading 60.01 and benefit of the said notification was claimed attracting ‘nil’ rate of duty. There is no dispute that the respondent was entitled to the exemption granted under the said notification till 19th January, 1988 when the proviso was inserted therein.
4. It would be useful to read notification no. 109/1986 C.E. dated 27th February, 1986, as amended by notification no.
3/1988-CE dated 19th January, 1988 here :
“In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944 read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the central government hereby exempts woven pile fabrics and chenil fabrics, tufted textile fabrics and knitted or crocheted fabrics falling under heading no. 58.01 or 60.01of the schedule to the Central Excise Tariff Act, 1985 (5 of 1957) as is in excess of the duty of excise and the additional duty of excise leviable under the aforesaid two Acts on the corresponding woven fabrics falling under chapter 51, 52, 53, 54 or 55 of the said schedule, read with any notification for the time being in force.
Provided that nothing contained in this notification, shall apply to knitted or crocheted fabrics of man-made textile materials falling under sub-heading no. 6001.12 of the said schedule and subjected to the process of bleaching, dyeing, printing, shrink-proofing, tentering, heat-setting, crease resistant processing or any other process or any two or more of these processes.
Explanation – For the purpose of this notification, the expression, ‘corresponding woven fabrics’ means fabrics specified in chapter 51, 52, 53, 54 or 55 which corresponds to knitted or crocheted fabrics with reference to the processes carried out therein, or the value of the fabric per square meter or the textile material contained therein.
2. This notification shall come into force on the 28th day of February, 1986.”
5. The notification discloses that the benefit available to sliver pile fabrics falling under heading 58.01 or 60.01 of the schedule to the Central Excise Tariff Act, 1985 is lost if the product is subjected to the process of bleaching, dyeing, printing, shrink proofing, tentering, heat-setting, crease-resistant processing or any other process or any two or more of these processes.
6. A careful reading of the proviso to the notification would show that by resorting not only to the process of bleaching, dyeing, printing, shrink proofing, tentering, heat-setting, crease-resistant processing, but also to “any other process or any two or more of these processes”, the respondent would lose the benefit of the exemption. It is a well established principle that general terms following particular expressions take their colour and meaning as that of the preceding expressions, applying the principle of ejusdem generis rule, therefore, in construing the words “or any other process”, the import of the specific expressions will have to be kept in mind. It follows that the words “or any other process” would have to be understood in the same sense in which the process, including tentering, would be understood. Thus understood, a process akin to stentering/tentering would fall within the meaning of the proviso and, consequently, the benefit of the notification cannot be availed by the respondent.
7. In the reply to the show cause notice issued by the assistant collector, central excise, Panvel division, the respondent stated, “the acrylic emulsion is water based and hence the fabric has to be dried. For this purpose, it is passed through hot air stenter.” The respondent sought to explain this with reference to the certificates given by the manufacturer of the machine to say that the process does not amount to stentering.
8. The assistant collector found that the respondent was using the process of stentering. On appeal, the collector (appeals), having inspected the manufacturing process in the factory of the respondent, affirmed the view of the assistant collector that stentering process was being resorted to by the respondent. However, on further appeal by the respondent, the tribunal, after referring to the expert opinion and the dictionary meaning of the words “stentering” and “tentering” held that no process of stentering/tentering is being carried out.
9. Even accepting the tribunal’s finding that the process does not strictly amount to stentering, it cannot be disputed that the process adopted by the respondent is analogous to stentering, as admittedly, the respondent is drying the fabric by passing through the hot air stenter.
10. In this view of the matter, the proviso clearly applies and the respondent, therefore, is not entitled to the benefit of the notification. The order under appeal is set aside.
11. The civil appeal is, accordingly, allowed. In the facts and circumstances of the case, we make no order as to costs.
1. This appeal is filed by the collector of central excise, Bombay against the order, no. E/254/94-D, of the customs, excise and gold (control) appellate tribunal in appeal no. E/4217/90-D dated 29th April, 1994. By the impugned order, the customs, excise and gold (control) appellate tribunal (for short, ‘the tribunal’) set aside the order of the collector (appeals), Bombay, affirming the order of the assistant collector holding that the respondent is entitled to the benefit of notification no. 019/1986-C.E. dated 27th February, 1986, as amended by notification no. 3/1988-C.E. dated 19th January, 1988 (for short, ‘the notification’).
2. The question that arises for consideration is: whether the respondent is covered by the proviso inserted in the notification?
3. The respondent-assessee manufacturers high fur fabrics by sliver knitting process. In classification list no. 1/1987 dated 10th March, 1987 filed by the respondent, the product was classified under heading 60.01 and benefit of the said notification was claimed attracting ‘nil’ rate of duty. There is no dispute that the respondent was entitled to the exemption granted under the said notification till 19th January, 1988 when the proviso was inserted therein.
4. It would be useful to read notification no. 109/1986 C.E. dated 27th February, 1986, as amended by notification no.
3/1988-CE dated 19th January, 1988 here :
“In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944 read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the central government hereby exempts woven pile fabrics and chenil fabrics, tufted textile fabrics and knitted or crocheted fabrics falling under heading no. 58.01 or 60.01of the schedule to the Central Excise Tariff Act, 1985 (5 of 1957) as is in excess of the duty of excise and the additional duty of excise leviable under the aforesaid two Acts on the corresponding woven fabrics falling under chapter 51, 52, 53, 54 or 55 of the said schedule, read with any notification for the time being in force.
Provided that nothing contained in this notification, shall apply to knitted or crocheted fabrics of man-made textile materials falling under sub-heading no. 6001.12 of the said schedule and subjected to the process of bleaching, dyeing, printing, shrink-proofing, tentering, heat-setting, crease resistant processing or any other process or any two or more of these processes.
Explanation – For the purpose of this notification, the expression, ‘corresponding woven fabrics’ means fabrics specified in chapter 51, 52, 53, 54 or 55 which corresponds to knitted or crocheted fabrics with reference to the processes carried out therein, or the value of the fabric per square meter or the textile material contained therein.
2. This notification shall come into force on the 28th day of February, 1986.”
5. The notification discloses that the benefit available to sliver pile fabrics falling under heading 58.01 or 60.01 of the schedule to the Central Excise Tariff Act, 1985 is lost if the product is subjected to the process of bleaching, dyeing, printing, shrink proofing, tentering, heat-setting, crease-resistant processing or any other process or any two or more of these processes.
6. A careful reading of the proviso to the notification would show that by resorting not only to the process of bleaching, dyeing, printing, shrink proofing, tentering, heat-setting, crease-resistant processing, but also to “any other process or any two or more of these processes”, the respondent would lose the benefit of the exemption. It is a well established principle that general terms following particular expressions take their colour and meaning as that of the preceding expressions, applying the principle of ejusdem generis rule, therefore, in construing the words “or any other process”, the import of the specific expressions will have to be kept in mind. It follows that the words “or any other process” would have to be understood in the same sense in which the process, including tentering, would be understood. Thus understood, a process akin to stentering/tentering would fall within the meaning of the proviso and, consequently, the benefit of the notification cannot be availed by the respondent.
7. In the reply to the show cause notice issued by the assistant collector, central excise, Panvel division, the respondent stated, “the acrylic emulsion is water based and hence the fabric has to be dried. For this purpose, it is passed through hot air stenter.” The respondent sought to explain this with reference to the certificates given by the manufacturer of the machine to say that the process does not amount to stentering.
8. The assistant collector found that the respondent was using the process of stentering. On appeal, the collector (appeals), having inspected the manufacturing process in the factory of the respondent, affirmed the view of the assistant collector that stentering process was being resorted to by the respondent. However, on further appeal by the respondent, the tribunal, after referring to the expert opinion and the dictionary meaning of the words “stentering” and “tentering” held that no process of stentering/tentering is being carried out.
9. Even accepting the tribunal’s finding that the process does not strictly amount to stentering, it cannot be disputed that the process adopted by the respondent is analogous to stentering, as admittedly, the respondent is drying the fabric by passing through the hot air stenter.
10. In this view of the matter, the proviso clearly applies and the respondent, therefore, is not entitled to the benefit of the notification. The order under appeal is set aside.
11. The civil appeal is, accordingly, allowed. In the facts and circumstances of the case, we make no order as to costs.
