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Smt. Sindhu Ganesh Bali and ors. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(5)LC1843Tri(Delhi)
AppellantSmt. Sindhu Ganesh Bali and ors.
RespondentCollector of Central Excise
Excerpt:
1. these are 10 appeals arising out of order-in-original no. v(19) 15-13/adj/74-532, dated 1-10-1976 of the collector of central excise, poona. nine of the appellants were licensees manufacturing the goods in question which (without prejudice to our final decision) will be referred for convenience as "fabrics". the tenth appellant, namely, messrs bali textiles, purchased the fabrics from the nine manufacturer appellants and sold them wholesale.2. at the relevant time, item 19 of the central excise tariff, relating to "cotton fabrics" was divided into a number of sub-items and sub-sub-items. the entries which are relevant in the present connection are reproduced below :-------------------------------------------------------------------- description of goods rate of duty.....
Judgment:
1. These are 10 appeals arising out of Order-in-Original No. V(19) 15-13/Adj/74-532, dated 1-10-1976 of the Collector of Central Excise, Poona. Nine of the appellants were licensees manufacturing the goods in question which (without prejudice to our final decision) will be referred for convenience as "fabrics". The tenth appellant, namely, Messrs Bali Textiles, purchased the fabrics from the nine manufacturer appellants and sold them wholesale.

2. At the relevant time, Item 19 of the Central Excise Tariff, relating to "cotton fabrics" was divided into a number of sub-items and sub-sub-items. The entries which are relevant in the present connection are reproduced below :-------------------------------------------------------------------- Description of goods Rate of duty Basic--------------------------------------------------------------------I.Cotton Fabrics (1) Coating, suiting, tussers, corduroy, gabar- 15% ad valorem dine, bed-ford, satin, denim, lappet, butta (1-A) Cotton fabrics other than those falling 15% ad valorem under (1) containing 30% or more by (a) Cotton fabrics, superfine, that is to say 15 % ad valorem fabrics in which the average count of yarn (b) Cotton fabrics, fine, that is to say fabrics -do- in which the average count of yarn is 41 s (c) Cotton fabrics, Medium-A, that is to say, 3 % ad valorem fabrics in which the average count of yarn 3. Under Rule 96J of the Central Excise Rules, there was a provision for a compounded levy of duty on cotton fabrics falling under sub-item I of Item 19, the incidence of the compounded levy being substantially lower than the Tariff rate of duty. The concession of assessment at the compounded levy rate was however not admissible to certain specified varieties of cotton fabrics. These specified varieties were the same as those specified under Item 19 1(1), that is coating, suiting, etc.

Among these excluded varieties were "tapestry, furnishing fabrics including jacquard curtain cloth...." 4. On 23-2-1974 the Excise authorities visited the premises of Messrs.

Bali Textiles (within which all the nine manufacturer appellants had their power-looms). They seized 13979.75 metres of fabrics from Messrs Bali Textiles on the ground that they were "furnishing fabrics". They also seized 111 metres of "furnishing fabrics" from 16 looms of the nine manufacturer appellants. On 23-2-1974 and subsequently statements were recorded from a number of persons, including the appellants, the dealers to whom Messrs Bali Textiles were selling the fabrics and certain cloth merchants. On the basis of samples drawn, reports were also obtained from the Deputy Chief Chemist, New Custom House, Bombay; the Office of the Textile Commissioner; and the Victoria Jubilee Technical Institute (VJTI), Bombay. On the basis of these enquiries, a show-cause notice dated 30-7-1974 was issued to all 10 appellants. In the case of the nine manufacturer/appellants the ground was that though they had been granted permission to work their power-looms under the special procedure (under Rule 96.T) and to produce and clear cotton fabrics falling under Item 19 1(2) of the Central Excise Tariff, they had instead cleared cotton fabrics known as "furnishing fabrics" falling under Item 19 1(1), on which duty was payable at ad valorem rates. They were required to show cause why penalties under Rule 9(2) of the Central Excise Rules should not be imposed on them, why the 111 metres of "furnishing fabrics" seized from them should not be confiscated under the same Rule, and why duty on 77225.75 metres of "furnishing fabrics" produced and cleared up to 23-2-1974 should not be demanded from them under the same Rule 9(2). Messrs Bali Textiles were called upon to show cause why the 13979.75 metres of "furnishing fabrics" seized from them and in respect of which offences appeared to have been committed should not be confiscated under Rule 9(2).

5. The appellants replied to the show cause notice and also sought a personal hearing and permission for examination of witnesses. Apart from their oral arguments, the advocate for the appellants, filed a large number of letters from Chambers of Commerce and traders, supporting their stand.

6. The Collector did not accept the appellants' contentions. He held that the fabrics in question "could be utilised for furnishing purposes and decorative purposes including the purpose of curtain" and that they fell under Tariff Item 19 I(1) and not under Item 19 I(2) as contended by the appellants. In the result, he imposed a penalty of Rs. 2,000/- each on the nine manufacturer/appellants under Rule 9(2). He demanded Central Excise duty at the rate appropriate to "furnishing fabrics" held to have been removed without payment of proper duty in the past.

The seized fabrics were held liable to confiscation. Since the goods had been allowed release provisionally against a bond with cash security of Rs. 13,587/-, the Collector ordered that this amount be appropriated and a further amount of Rs. 16,413/- be demanded, making a total of Rs. 30,000/-. Against the Collector's order appeals were filed to the Central Board of Excise and Customs. In a short order, the Board rejected all the 10 appeals. It is against this order of the Board that the present appeals are directed.

7. Appearing before us for the appellants, their advocate Shri Pitre, outlined the case of which the main features have already been set out.

He vehemently contended that the goods in question were chaddars in length or chaddar cloth, meant for being used as chaddars, that is bed spreads, etc. He contended that these fabrics were being used by customers after being cut to the required sizes to suit the needs of each customer. He further submitted that the absence of a severable light separation of single warps at the end of every piece of chaddar, which the Department had contended was necessary, led to wastage of material and it was on this account that the fabrics under seizure did not have such a separation. He added that the method adopted was in line' with the recommendations of the National Productivity Council.

The terms used by the wholesale dealers to describe the goods namely "Jacquard cloth" or "tapestry powerloom cloth" should not be held against them as manufacturers, since a wholesaler mieht describe his wares according to his convenience.

8. Shri Pitre also assailed the reports of the three technical authorities referred to above on the ground that they were inconclusive and had not been able to withstand cross examination. He further submitted that the appellants had produced several witnesses in support of their stand, but the evidence of these witnesses had been conveniently ignored by the Collector.

9. Shri Pitre also submitted that the demands for duty as contained in the Collector's order were bad, since the amount of duty had not been quantified.

10. According to Shri Pitre, the order of the Board was equally unsustainable, as it relied on the same reasoning as had been adopted by the Collector.

11. At the end of Shri Pitre's arguments a question arose whether samples of the goods were available. Time was given to both sides to produce authenticated samples if any. At the resumed hearing on 19-3-1985, Shri Pitre produced a sealed packet superscribed as containing samples of furnishing fabrics taken on 28-2-1974. According to the record, four sets of one sample each were drawn on 28-2-1974, of which one sample was left with Shri R.A. Bali; and four sets of 4 samples each were drawn on 29-4-1974, one set being left with Shri A R.Bali. The sealed packet brought by Shri Pitre was opened in Court and found to contain four samples, which correspond to the description of the samples said to have been drawn on 29-4-1974. (The samples produced by Shri Pitre correspond in number and description to those drawn on 29-4-1974, but the date is given as 28-2-1974. This discrepancy has not been explained).

12. Shri Verma, the learned representative of the Department, also pre sented before us four sealed packets said to contain samples relating to these cases. They had been brought by Shri S.R. Sathe, Superintendent of Central Excise (Preventive Intelligence), Sholapur Division. Shri Sathe, who was present before us, when asked what these samples represented, stated that they had been received from the Office of the Collector of Central Excise, Pune. after the adjudication of the cases. He fairly stated that he could not indicate exactly what the various samples contained in the sealed packets represented. These could be samples of the goods seized. They could also be samples of other goods from the market showing what genuine chaddars or furnishing fabrics should be like. These packages were also opened before the Bench and found to contain one or more sample in each. It was not, however, found possible to relate them to the Collector's order except in regard to the four samples sent to the VJTJ, which could be identified by labels apparently affixed by the VJTI.13. After the samples had been seen, Shri Verma made his submissions.

He laid stress on the criteria which had been adopted in the Collector's order as applicable to chaddars, e.g. :- Chaddars should be made to specific sizes and confining designs, which the fabrics in question were not; chaddars necessarily had borders on all the four sides, which the seized fabrics did not have; the fabrics under seizure were in running lengths of several tens of metres and had only five selvedges. Chaddars were not taken in running length, and if they were so taken for the purpose of continuous weaving, there was always a severable light separation of single warps (no weft being used), at the end of every piece of chaddar; the bills for chaddars, etc., would according to trade practice indicate only the number of pieces whereas in respect of the fabrics under seizure, the bills (though printed for chaddars, bed-shfeets, etc. in standard sizes) had been overscored with the subscription "dobby cloth"; quantity was shown in terms of length in metres, and the price also charged on the basis of metres.

14. As regards the argument of the appellants that the pieces had been woven in continuous lengths to avoid wastage, Shri Verma submitted that this argument did not have force because the appellants were also simultaneously weaving chaddars in separate pieces.

15. Shri Verma also submitted that the test reports of the Deputy Chief Chemist, Textile Commissioner and the VJTI supported the Department's contention.

16. Shri Verma further submitted that the wholesalers to whom the goods were sold by Messrs Bali Textiles had clearly stated that they were not selling them as chaddars but as "Jacquard cloth" and "tapestry powerloom cloth". It had further been stated that tapestry cloth was a furnishing cloth. The statements of the wholesalers would also show that according to the understanding of the trade the goods were furnishing cloth and not chaddars.

17. Replying to Shri Verma, Shri Pitre reiterated the submissions already made by him. He cited the order of the Tribunal, reported in 1985 (19) E.L.T. 562 in the case of Hindustan Lever Limited v.Collector of Central Excise, Bombay, wherein it had been observed that the correct classification of goods was not dependent on the advertisements of the manufacturers or the classification of similar products. He concluded by submitting that even if it was held that the goods were furnishing fabrics, there was no case for a penalty, because the issue was a very debatable one, and the Department itself had found it very doubtful because it had taken six months of deliberation after the seizure to issue the show cause notice.

18. We have given our careful consideration to the facts of this case and the legal issues involved. In the first instance, it is desirable to clarify the issue. There has been much discussion as to whether the goods in question were "chaddars" or "furnishing fabrics". One question which arose was whether, even if the fabrics were accepted as being meant for use as chaddars after being cut to the required lengths they could at the time of removal be considered as 'chaddars". In this connection we observe that the interpretation of the term "chaddar" does not really arise for determination in this case. That term is used only in the general heading of Item 19. The main heading is "cotton fabrics" and this has been given an inclusive definition which covers among other things "chaddars". It is nobody's case that the fabrics under consideration do not fall within the scope of Item 19; they would do so whether they are regarded as "chaddars" or as cotton fabrics not specifically enumerated in the main heading.

19. There is also no dispute that the fabrics under consideration, whatever they might be called, would fall within sub item I of this Item. Therefore, the question arises under which entry under sub-heading I they would fall. Here again, it is common ground that entry (1-A) is not attracted and that the choice is between entry (1) and entry (2).

20. As will be seen from the entries, which have been reproduced in para 2 above, entry (1) is specific and covers a number of varieties of cotton fabrics which have been described thereunder. Entry (2) is a residuary entry, and covers all other cotton fabrics [apart from those falling under entry (1-A)]. As between entries (1) and (2), entry (1) carries a higher duty liability-firstly, because the statutory rates of duty on some goods falling under entry (2) are lower; and secondly, because goods falling under entry (1) are excluded from the benefit of assessment at the compounded levy rate {vide para 3 above). Therefore, when the question is whether any goods would fall within entry (1) which carries a higher duty liability, or entry (2),which carries a lower duty liability, the burden is clearly on the Excise authorities to bring the goods within the scope of entry (1), in accordance with well-known authorities.

21. As mentioned earlier, relevant varieties of fabrics falling under entry (1) are "tapestry" and "furnishing fabrics including jacquard curtain cloth".It will be observed that the terms "tapestry" and "jacquard" refer to the construction or composition of the fabric, or the method used for weaving it. The terms "furnishing fabrics" and "curtain cloth" refer to the use of the fabrics.In fact, since curtain cloth is also obviously a variety of furnishing fabric, the expression "furnishing fabrics including jacquard curtain cloth" can be taken as a whole to mean cotton fabrics which are known and recognised as being used as furnishing fabrics. On the other hand, tapestry has a different connotation. In his order the Collector has made a mention of the term "tapestry", which has been used in the bills made out by one of the wholesalers, namely Messrs. P.M. Gandhi. He has also observed that the show-cause notice was specific in stating that the fabric in question was "furnishing fabrics/tapestry". It appears that the learned Collector was under some misapprehension in this regard, because the show cause notice repeatedly refers to the goods as "furnishing fabrics", and the charge throughout is that the appellants had committed offences in regard to the manufacture and removal of "furnishing fabrics". This was the case which they were required to meet, not that the goods Were furnishing fabrics or alternatively tapestry within the meaning of entry (1). The only reference to "tapestry" in connection with the show cause notice was at page 4 of the Annexure, which recounted the facts of the case, wherein it is mentioned that the fabrics were sold by one of the wholesalers, Messrs P.M. Gandhi, under the description "tapestry powerloom cloth", and even this was followed up by a statement that "tapestry cloth was a furnishing cloth and was generally used for decoration and curtain purposes".

22. We have made the above observations because, as pointed out earlier, "tapestry" which has reference to the method of weaving, etc., has a different connotation from "furnishing fabrics", which refers to the use of the fabric. No doubt, the same fabric could satisfy both descriptions. However, since the case against the appellants was specifically that the goods were "furnishing fabrics", it had to be sustained only on that ground and not on the ground that they were "tapestry".

23. Therefore, in these proceedings what was at issue was whether the goods were "furnishing fabrics", and the burden was on the Excise authorities to establish that they were so. No doubt, the appellants took the stand that the goods were "chaddars", but the basis of their case had to be that the goods were not furnishing fabrics. Whether they were chaddars in standard sizes or fabrics which were meant to be cut to length and used as chaddars (assuming that their explanation to this effect is to be accepted) would make no difference to their defence.

23A. Having set out the basic issue in the case, we shall proceed to examine the evidence on which the Collector's conclusions were based.

These can be classified as under :- (i) The popular, or layman's, conception of "chaddars" and "furnishing fabrics"; (ii) the opinion of technical persons such as the Deputy Chief Chemist; (iv) Evidence from the accounts of the wholesalers who actually dealt with the goods.

24. Coming to the first aspect, Shri Verma had referred to the criteria which according to the Department' would show that the fabric was not chaddars. Chaddars or bedspreads are certainly articles of which the layman has some experience and even a layman's view would be relevant.

However, we are doubtful if it can be said that a layman would consider a piece of cloth to be a chaddar only if it had a particular kind of pattern or a "confining design". We think there could also be chaddars with simple designs or even with no design. As regards the point that chaddars should be only in specific sizes, whether or not separated by 'a severabie light separation of single warps at the end of every piece", we have already mentioned that, if it is accepted that the fabrics were in the nature of chaddars but for the absence of this feature, that would not make any difference to the case of the appellants, since such "chaddar cloth" would not ipso facto become a "furnishing fabric". The arguments as to what constitutes a chaddar are therefore not of much help in deciding the issues here: essentially we have to go into the question as to what are ' 'furnishing fabrics" and whether the fabrics in question we have been shown to be "furnishing fabrics" 25. We have already referred to what would be the common understanding of the expression "furnishing fabrics" (vide para 20 above). In the Collector's order there is reference to the Mercury Dictionary of Textile Terms, and it is stated that it defines "furnishing fabrics" as "a general term for heavy figured fabrics as Brocades, Lampas or Damask", This definition is of very little help to us in connection with the present case, 26. According to the appellants, "furnishing fabrics" or "furniture fabrics" are defined as "a British term for decorating fabrics of all kinds such as upholstery1 and drapery". This also does not convey much beyond the common understanding of the expression itself.

27. Since the common understanding, and even the dictionary definitions, are not of much help, we shall turn to the other evidence relied upon by the Collector.

28. Copies of the opinions given by the Deputy Chief Chemist, etc., were placed before us. The relevant part of the Chemical Examiner's report reads as follows : - "The sample is in the form of a piece of blue and red cotton fabric having fancy designs. It has got the characteristics of jacquard weave fabric. The sample has got the appearance of furnishing fabric. However, market enquiries and actual usage may be ascertained before assessment." It appears that the Chemical Examiner or Deputy Chief Chemist was not examined before the Collector, His report as it is of little help, since he has left the matter to be determined on the basis of market enquiries and actual usage.

29. The opinion of Shri R. Subramanian, Deputy Director in the Textile Commissioner's Office was as under :- "I am to convey the technical opinion that samples marked 'A' and 'B' can be used for purposes of furnishing materials and cloth as per samples No. 'C and 'D' can be used as dress materials".

According to the Collector, the advocate for the appellants had requested cross-examination of Shri Subramanian, and the request was accepted. However, there is no further reference in the order to his cross-examination or what transpired therein. Going by the report itself, we have found a difficulty, because we were unable to correlate the samples produced before us by the Department with "A", "B", etc., referred to in the report. Taken by itself, the report is on a "fifty-fifty" basis: two of the samples are said to be usable as furnishing materials and the other two are said to be usable as dress materials. This report does not, therefore, lead to any categorical conclusion about the nature of these fabrics.

"1. The samples 2 and 3 are woven on Jacquard, and being of course (sic) cloth, are meant for furnishing purpose.

2. The sample 4 is woven on Jacquard and can be considered both for furnishing and dress material.

3. The sample 1 is woven on dobby and meant only for dress material".

This report could be correlated with the samples produced before us by the Department. We found that the sample marked No. 4 had a woven pattern but was lighter and thinner than the others and we were given to understand that it did not pertain to the goods under dispute. Of the other three samples, the report is categorical regarding samples 2 and 3. We found that the samples marked Nos 2 and 3 by the VJTI are fairly thick and have woven patterns. They are similar except for the differences in colours and patterns. The sample marked No. 1 is slightly thinner and of finer weave. It is of a pale blue colour such as is used for jeans. It is common knowledge that the VJTI is an institute of high repute and opinions given by it carry considerable weight. However, any such opinion is also subject to the test of cross examination. Prof. D.B. Ajgaonkar of the VJTI was cross-examined by the advocate for the appellants, and his evidence, as set out in the Collector's order, was as follows :- "Prof. D.B. Ajgaonkar, stated that in the broad sense the seized fabrics may be called furnishing fabrics. Furnishing fabrics is a fabric which has a decorative effect obtained by using coloured yarn or fancy yarn. He further stated that all types of yarn can be used in the manufacture of furnishing cloth and it is not necessary that high tensiled yarn and high tested yarn should be used in the furnishing fabrics".

"Prof. Ajgaonkar, Chartered Textile Technologist, VJTI., Bombay, who was cross examined, gave his view from academic point of view stated that in the broad sense all the fabrics under seizure may be called furnishing fabrics. He stated that furnishing fabrics has a decorative effect obtained by using coloured yarn or fancy yarns. He also asserted that all types of yarns could be used in the manufacture of furnishing cloth and that it is not necessary to use only high tensiled yarn or high tested yarn in furnishing fabrics".

We find that what Prof. Ajgaonkar stated during cross examination considerably dilutes what was said in the report of the VJTI. In fact, if it was his view that in the broad sense all the fabrics of which samples were sent to him could be called furnishing fabrics, this would appear to be somewhat contrary to the opinion given in the report regarding samples No. 1 and 4.

31. Thus, considering the technical reports as a whole, and taking into account the cross examination of the only one of the technical persons of which there is a record, we are unable to find that they support the categorical conclusion that the goods were furnishing fabrics.

32. We then come to the examination of witnesses before the Collector, as well as evidence in the form of letters, etc., submitted to him. It appears that apart from Prof. Ajgaonkar of the VJTI, and Shri Subramanian of the Textile Commissioner's Office (to both of whom reference has already been made), the examination covered the following persons on whose evidence the Department had placed reliance :- 1. Shri O.J.F. Gomes, Assistant Collector Central Excise, who was the investigating officer; |' 3. Shri K.D. Kapadia, partner of Messrs H. Dwarakadas, another such wholesaler; 4 to 6. S/Shri P.M. Mehta. A.K. Chhubira and V.M. Shah who had been asked to express their trade opinion about the variety of the cloth pieces constituting the samples.

3. Shri N.R. Raut, Manager, Laxmi Vishnu Cotton Mills Ltd., Sholapur; 34. The detailed record of the examination of the various witnesses has not been placed before us by either side and we have therefore to go by the fairly brief references contained in the Collector's order. It is also mentioned in the Collector's order that the advocate of the appellants produced before him letters from three representative Chambers of Commerce and 48 letters from various dealers in textiles, supporting their defence that the seized goods were chaddars.

35. We have already referred to the. evidence of Prof. Ajgaonkar. The investigating officer's evidence was only to the effect that the fabrics were seized since he found them to be furnishing fabrics and not chaddars. Shri P.M. Gandhi confirmed his statement given to the Excise officers, wherein he had said that he had sold the goods under the description "tapestry powerloom cloth" He further stated that there was a demand from semi-wholesalers for lengths of 10 to 15 metres, and also that any material which was of a decorative nature could be used as furnishing fabric. Shri Kapadia stated that the fabrics in question were "jacquard cloth" and were called "jacquard chaddar cloth". They had been sold as "jacquard cloth" 36. Shri P.M. Mehta and the other two panchas had given their opinion to the Excise authorities as follows :- "The fabrics at S. Nos. 1 and 2 above were furnishing fabrics of jacquard tapestry type and the same was mainly used for decorative and curtain purposes. The cloth at Sl. No. 3 was mainly used for pants and coats and cloth at S. No. 4 is Shirting" Out of these only Shri Mehta seems to have been examined and he stated that if the material of which he had seen the samples was in a full roll it was clearly used for furnishing, otherwise dresses could be made. The normal width of furnishing cloth was 48" whereas for bed-sheets it was 54".

37. Of the defence witnesses, Shri Ranga Yadao, Shri T.S. Joshi and N.R. Raut all stated that the cloth under seizure was not furnishing fabrics The "two independent gentlemen" expressed the opinion that the fabrics were not furnishing fabrics, that they were using the same as chaddars and that they had not seen anybody using them as furnishing fabrics.

38. The above is the state of the evidence, as seen from the Collector's order. The Collector relied on the evidence of the witnesses called by the Department in support of the conclusion that the goods were furnishing fabrics. He rejected the evidence of the defence witnesses on various grounds. The evidence of Shri N.R. Raut was rejected on the ground that he had placed emphasis more on the production side, that is by using single beam and produc-ioa cloth of continuous length. The evidence of the "two independent gentlemen" was rejected on the ground that it was not supported by any documentary evidence. The three letters from "representative Chambers of Commerce" and 48 letters from various dealers in textiles were not given weight, because they were obtained from the parties after issue of the show cause notice, more or less the same wording was used, and the letters had been obtained to strengthen the views of the licensees. No specific reasons have been given for rejecting the evidence of Shri Ranga Yadao and Shri T.S. Joshi.

39. We had also referred to the description of the goods by the two wholesalers, namely Messrs. P.M. Gandhi and Messrs. H. Dwarakadas. The purport of these has been brought out in the earlier discussion.

40. We have now to consider the effect of the evidence as a whole. As we have already said, the evidence of the technical experts is inconclusive. Perhaps the strongest point in favour of the Department's case was that the wholesalers to whom the goods were sold had described them as "Dobby cloth" or "jacquard cloth" or "tapestry powerloom cloth". Shri Pitre argued before us that what mattered was the nature and use of the cloth and not the description which might have been given by wholesalers for their own purposes. We would not attach too much significance to the fact that the goods were not described as "chaddars", "bed sheets", etc., even though the printed bill forms showed such items. Since admittedly the goods were sold in lengths, in the form of takas, it would have been more convenient to show them as "cloth" and to give the prices in terms of length. It could still be said that the terms used by the wholesalers were closer to furnishing cloth than to chaddars. But, as we have already pointed out, this was a case where the Department had to establish affirmatively that the goods were "furnishing cloth". Having regard to the evidence as set out above, we do not find possible to hold that the weight of evidence favouring the classification of the goods as "furnishing fabrics" was sufficient to discharge the burden cast on the Central Excise authorities.

41. We would like to make it clear that we have confined ourselves to the material available on record and placed before us. The evidence is not sufficient for us to attempt a definition of the expressions "furnishing fabrics" and "chaddar"; nor indeed it is necessary for the purposes of this case to attempt an abstract definition, in view of the mass of evidence placed before the Collector to show what was the understanding of persons dealing in or concerned with such goods, with reference to the particular goods under dispute. We would also like to stress that, while our observations in paras 18 to 20 would have general applicability, our conclusions on the particular goods under dispute are based solely on the evidence available on the record, and should be taken as applicable to the particular facts of this case.

With these qualifications, we hold that the evidence before the Collector was insufficient to sustain the finding that the goods were furnishing fabrics, and therefore the classification, demands for duty and personal penalties deserved to be set aside.

42. Our reasoning would equally apply to the Order-in-Appeal of the Central Board of Excise and Customs, which is a brief order relying on the reasoning contained in the Collector's order.

43. In the result, we allow all these 10 appeals and direct that consequential relief be granted.


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