Satish Chandra, J.
1. Item No. 19(1)(i) of the Schedule 1 of the Central Excises and Salt Act lays down 15% ad valorem duty on, inter alia, 'canvas' and 'duck', while sub para (2) of paragraph 19-1 refers to other articles, namely cotton fabrics of various types. Under this entry the excise duty was recoverable at fixed rate ad valorem from 60 paise to 80 paise per square metre.
2. Ms. Cawnpore Textiles Limited, Kanpur, the petitioner, manufactures cotton fabrics known as 'Do Suti' and Dedh Suti. The Excise Authorities took samples of the four varieties of these fabrics manufactured by the petitioner, which were termed as Q-22, Q-204, C.T.-1304 and C.T-6622, and sent them for chemical examination, On 8th April, 1970, the Assistant Collector, Central Excise, informed the petitioner Company that samples Q-22 and Q-204 have been found to be less than 8 ounces per square yard and hence they are liable to be assessed to excise duties under Item No. 19-1 (2). But in regard to samples C.T. 1304 and C.T. 6622 it was stated that since their weights have been found to be more than 8 ounces per square yard, they are liable to be assessed to excise duties under Item No. 19-1(1). It spears that the petitioner Company did not accept the Chemical Examiner's report with regard to the two samples of the C.T. varieties. At the insistence of the petitioner the samples of these two varieties were again sent for chemical examination. The result of the Chemical Examiner's report was that both these varieties are less than 8 ounces per square vard.
3. It is not clear how it was done, but the samples of two C.T. varieties were again sent to Chemical Examiner and the information conveyed to the petitioner Company, on the basis of the report of this examination, show that the samples of these two varieties were over 8 ounces per square yard in weight.
4. The petitioner Company made a written request to the Assistant Collector that the samples be sent for chemical test once again. The Assistant Collector by his order dated 4.5.1971 rejected the prayer. He held that these two items being over 8 ounces per square yard in weight were liable to be assessed under Item No. 19-1 (1) on ad valorem basis.
5. Aggrieved by the order, the petitioner Company filed an appeal. The same was, however, dismissed by an order dated 15-03-1973. The petitioner being aggrieved by the aforesaid order, went up to the Central Government by way of revision, which was also dismissed by order dated 30-04-1976. Thereafter the petitioner Company approached this Court under Article 226 of the Constitution.
6. Mr. Rakesh Dwivedi, appearing for the petitioner, has placed before us three points, namely :-
(i) Classification for purposes of levy of excise duty at 8 ounces per square yard, was arbitrary and illegal.
(ii) The report of the Chemical Examiner, which shows that the two C.T. samples were less than 8 ounces per square yard, was rejected illegally.
(iii) On overall consideration the articles manufactured by the petitioner Company were not 'duck'.
7. In order to appreciate the first point, it may be stated that the Schedule to the Excise Act does not define or clarify the significance of the terms 'Duck', 'Canvas', 'Do Suti' and 'Dedh Suti'. The Central Board of Excise and Customs by Circular dated 6th June, 1969, clarified all these four terms.
8. The term 'Canvas' is defined as below :-
'The fabrics must have at least two folds (ply) yarn both in the warp as also in the weft with plain or double and plain weave and weighing not less than 6 ounces per square yard.'
For 'Duck' it was stated :-
'Cotton fabrices having single warp yarn woven in pairs and single or ply or single yam in pairs on the weft with plain or double and plain weave and weighing not less than 8 ounces per square yard.'
The above definition of duck would cover all cotton fabrics with plain or double and plain weave and weighing not less than 8 ounces per square yard with the following constructions :-
(i) Single warp yarn in pairs and plied yarn in weft.
(ii) Single warp yarn in pairs and single yarn in weft.
(iii) Single warp yarn in pairs and single weft yarn in pairs.
'9. In the case of 'Do Suti', single yarn is used in pairs both as the warp as well as on the weft and if such fabrics weigh not less than 8 ounces per square yard, the same would be classifiable under 'Duck'.
10. In the case of 'Dedh Suti', single yarn in pairs is used for the warp but on the weft only single yarn is used. 'Do Suti' and 'Dedh Suti' are Hindi words, while literally mean 'two threads' and 'one and half threads' respectively and in construction these are the same as 'Duck' and should, therefore, be charged to ad valorem duty if their weight is not less than 8 ounces per square yard.
11. The weight of 6 ounces and 8 ounces per square yard specified in the definitions of'canvas' and 'duck' as above, would be in relation to the loom state weight of the fabrics, i.e. after deducting the weight of sizing, if any.
12. All the pending assessment of 'Canvas' and 'Duck' may be reviewed in the light of the above mentioned definitions.
13. There is no dispute that constructionally the fabrics manufactured by the petitioner Company conforms to the criteria laid down in the Circular and in that respect is was identical with that of 'Duck'. Here the classification was fixed at 8 ounces weight per square yard.
14. The learned Counsel says that this was wholly arbitrary and hence illegal. In paragraph 31 of the counter-affidavit it has been stated that the term 'Duck' has been defined in Complete Encyclopedia compiled by Sri V.R. Bareve, Textile Consultant, as follows: -
'Kind of coarse cloth for small said sicking etc. Comparatively heavy and finer plain woven cloth of cotton with 6.5 ounces per square yard weight.'
They have also given the dictionary meaning of the textile terms and then the respondents have stated that the weight per square yard has been prescribed as 8 ounces or more per square yard, so that, the trade may not be inconvenienced. It is, thus, clear that instead of complaining the petitioner should thank itself for repondents having fixed 8 ounces or more per square yard taking into account the inconvenience of the trade. They could have validly fixed the classification at 6.5 ounces per square yard weight, with the result that the fabrics having more than 6.5 ounces per square yard would have been classified as 'Duck'. Therefore, it cannot be said that the classification of levy of excise duty at 8 ounces per square yard was in any manner arbitrary and illegal.
15. The next point was that the report dated 15th April, 197.0, in which it was reported that samples C.T. 1304 and C.T. 6622 were less than 8 ounces per square yard, should have been given the weight. A persual of the appellate order shows that this report was duly taken into consideration, but it was rejected on the ground that the report itself stated that the material sent to the Chemical Examiner for examination was slightly whiter and slightly thinner than the samples bearing same murks that had been sent to the Laboratory at the earlier occasion. It was held that the samples sent this time were not the samples from the original sorts bearing the same numbers. The same sample should have been sent for re-testing. But, it appears that some fresh samples were taken out from fresh stock and were sent for examination. This could not be done validly, because the complaint of the Company was that the samples originally sent was not correctly axamined. The Appellate Collector was, hence, justified in rejecting this report. The petitioner cannot have any legitimate grievance at this conclusion.
16. It was then urged that in common parlance the fabric manufactured by the petitioner Company are called as 'Do Suti' and 'Dedh Suti' and it was not known as 'Duck' There is hardly any decision on this point. There are certain dictionary meanings but they did not establish this assertion. On the other hand the Mechnical literature defining the term 'Duck'and 'Canvas', which: is well known to the Textile Industry show that cloth popularly known as 'Do Suti' and 'Dedh Suti' in technical terminology are not distinguishable from 'Duck'.
17. We are, hence, not satisfied that any of the point raised by the learned counsel who argued with ability and conciseness has any force. The petition fails and is. accordingly, dismissed. There will be no order as to costs.