TaxTMI 
TaxTMI 
2009 (2) TMI 290
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....er CETH 58.03 whereas the respondent had classified it under CETH 52.07. 2. Ld. DR on behalf of the Revenue submits that the product manufactured by the appellants was actually Leno gauze fabric and they had declared the same as mosquito net fabric to avoid payment of duty. For this he drew support from the fact that a statement was recorded from Shri Anilbhai V. Shah, Partner of M/s. Gujarat Healthcare, Ahmedabad from whom the consignment was seized and who was one of the buyers wherein he stated that what they had purchased was bleached leno gauze fabric and they were using the same exclusively for manufacture of bandages; he also had stated in his statement that fabrics were being cleared describing the same as bleached mosquito net f....
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....to the fact that gauze is generally used for curtaining as mentioned in the notes under CETH No. 5803. According to him it is the gauze which is classifiable under Chapter 52 which finds itself mostly used as bandage and not the product under 5803. He submits that Chemical Examiner has clearly reported that the fabrics are open weave fabrics and it is his submission that the report does not support the case of the Revenue. He also submits that Commissioner had set aside the confiscation of the fabrics seized from M/s. Gujarat Healthcare which has been set aside and no appeal has been filed against this order. He submits that there cannot be a part challenge of the order. 3.1 We have considered the submissions from both the sides. Accordi....
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....te open weave fabric. Warp yarns composed of standing threads and crossing threads and form loops through which weft yarns pass". Basically the question to be examined is whether plain weave and open weave are same which is the assumption on the basis of which Commissioner has passed order. Plain weave fabrics falling under Chapter 52 and leno gauze fabrics which fall under Chapter 58 are entirely different. 3.2 Plain weave has been explained in sub-heading note to Section XI as "a fabric construction in which each yarn of the weft passes alternatively over and under successive yarns of the warp and each yarn of the warp passes alternately over and under successive yarns of the weft. The weave pattern is shown diagrammatically below :- ....
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....s of plain weave such as thus generally used for bandages and dressings often called 'gauze' are classifiable under Chapter 52 to 55 was not considered by the Tribunal in M/s. Mangala Textiles case. However, we find that this Note is applicable only to plain weave fabrics and not leno weave fabrics which is the fabric under consideration in this case. No doubts arise when we see the definition of gauze sometimes also known as leno weave given in Chapter Note 3 of Chapter 58. 3.4 The Revenue's case does not only depend upon the technical aspects which have been discussed above. The case is also supported by the following :- (i) Shri Hetalbhai N. Shah, Managing Director of the respondents had admitted that they had manufactured and clea....