TaxTMI 
TaxTMI 
2007 (1) TMI 360
X X X X Extracts X X X X
X X X X Extracts X X X X
....e fibre of cellulosic origin predominates in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power - (i) not containing, any man-made fibres of non-cellulosic origin (ii) containing man-made fibres of non-cellulosic origin Explanation I - "Count" means the size of grey yarn (excluding any sizing material) expressed in English Count. Explanation II - For multiple fold yarn, "count" means the count of the basic single yarn. Explanation III - Where two or more of the following fibres, that is to say, (a) man-made fibre of cellulosic origin; (b) cotton; (c) wool or acrylic fibre, or both; (d) silk (including silk noil); (e) jute (including Bimlipatam jute or mesta fibre); (f) man-made fibre of non-cellulosic origin, other than acrylic fibre; (g) flax; (h) ramie, in any yarn are equal in weight, then, such one of those fibres, the predo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied, test report No. 9/85 is not relevant at all since the sample for test was drawn on 3-4-84, subsequent to the period of dispute. Ld. Counsel points out that test report 2/85 is also not relevant as it relates to polyester fibre. 7. The submission of the ld. Counsel in regard to other reports is that both these reports are in regard to the test of non-cellulosic synthetic waste, one of the raw-materials used in the manufacture of yarn. It is being emphasized that the test reports are not in regard to the test of yarn in question. It is also being pointed out that the test reports clearly bring out that 'man-made fibre' is not the raw-material used in the manufacture of the yarn in question. Instead, it was non-cellulosic synthetic waste. It is being pointed out that test report 3/85 mentioned that the sample is "a mixture of different coloured fibrous mass" while test report 5/85 mentioned the sample as of fibrous mass. The submission of the ld. Counsel is that it is well settled that a yarn would be treated as containing man made fibre only if the yarn is produced from such fibre and not from fibrous waste. Reliance in this connection is being placed on the decision of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is not denatured salt. On the other hand, after examining the chemical composition has opined that the subject matter is to be treated as Sodium Chloride. 30. It has been held by this Court in number of judgments that burden of roof is on the Revenue in the matter of classification. In UOI and Others v. Garware Nylons Ltd & Others - 1996 (10) SCC 413, in para 15 this Court held as under : "15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item lit question is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case as this, where the claim of the assessee is borne out by the trade enquiries received by them and also the affidavits filed by persons dealing with the subject matter, a heavy burd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acts except to the extent that it is not a case for levy of penalty as the classification list filed by the assessee-appellant had already been approved as 'Cellulosic Spun Yarn' containing 'Non-cellulosic waste' by the Department. Accordingly, we dismiss the appeal but, in the circumstances of this case, penalty imposed by the Collector, Central Excise and confirmed by the Tribunal, is waived. No costs". The point made by ld. DR is that since the goods in dispute and its manufacturing process are the same, in the earlier and present cases, there is no reason to take a contrary view in the present appeal. Ld. DR also would point out that the present objections were not taken before the lower authorities and therefore, they cannot find acceptance at the appeal stage. He would further point out that the factual observations made in our Misc. Order No. 474/06, dated 2-7-06 [2006 (206) E.L.T. 584 (T)] made it clear that the factual position in the present case is the same as the ones constituting the basis for Tribunal's final order of 2004 in the appellant's case. Ld. DR would also point out that it is erroneous to state that the test reports found the sample to be fibrous ma....