1994 (4) TMI 132

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....stant Collector classified the items under sub-heading 5802.12 on the ground that they were processed fabrics and also relied upon the ratio of the judgment of Madras High Court in the case of Assistant Collector of Central Excise, Erode and Another v. M/s. Yarn and Cloth Processing Centre [1986 (24) E.L.T. 281]. This view was upheld by the Collector (Appeals) in the impugned order. Hence, this appeal. 2. Shri Venugopalan, learned Advocate, appearing for the appellants submitted that jacquered towels are manufactured out of bleached/dyed yarn of various colours and the towels (towelling) that emerge out of the loom contain designs made out of this yarn and after emerging from the loom the towels do not undergo any further process. Since ....

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....of Madras High Court is applicable to the present case inasmuch as wordings of Notification No. 88/69 are similar to the description in the tariff entry. While interpreting the notification High Court held that merely because it is not subjected to dry finishing operation, or wet finishing operation, fabric made out of bleached and/or dyed yarn cannot be treated as grey fabric. She said that applying the ratio of the decision the item in question is appropriately classifiable under Heading 5802.12. She said that Department has not relied upon H.S.N. while deciding the issue of classifi- cation but decided with reference to tariff entries in respect of jacquered terry relying upon the decision of Madras High Court but only Collector (Appeals....

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.... process. In the facts and circumstances we hold that these are appropriately classifiable under 5802.11 as claimed by the party. 5. In the result, we set aside the impugned order and, accordingly, the appeal is allowed. 6. [Dissent per : S.D. Mohile, Member (T)]. - I have gone through the order recorded by the Hon'ble Member (J) but with due respect I am not able to agree with the finding of the learned Brother. 7. In my opinion, the ratio of the Madras High Court decision is very much applicable to the facts of the present appeal, even though the High Court decision related to the old tariff. 8. In the present appeal as well as in the case decided by the Madras High Court, towels had been manufactured out of dyed, bleached yar....

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....lso towels made out of dyed and/or bleached yarn and hence the observations of the Madras High Court based on the evidence tendered before it would be squarely applicable to the facts of the present case. 11. Though in the case before the Madras High Court, the Department was claiming that such towels were `Grey' and the appellant was claiming that these were `processed' and in the present appeal, the Department has taken the opposite stand will not make any difference regarding the applicability of the ratio of the Madras High Court decision to the facts of the present case. 12. On this view of the matter, I propose that the appeal deserves to be rejected. Dated : 6-12-1993      Sd/- G.A. Brahma Deva&nbsp....

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....lan, learned advocate for the appellants and Smt. J.M.S. Sundaram for the Revenue. Learned advocate has pointed in support of the view taken by the learned Judicial Member that in view of the admitted facts that jacquered towels have not been subjected to any process after it comes of the jacquered machine, the plain wording of Tariff Heading 5802.11 is clearly satisfied by the aforesaid goods whereas the Tariff Heading 5802.12 speaks of the cotton fabric subjected to further processing. He submits that the reliance placed by the learned Technical Member on Madras High Court's judgment in the case of ACCE, Erode v. Yarn & Cloth Processing Centre, Erode [1986 (24) E.L.T. 281 (Madras)] does not apply to the present case because in that case t....