1980 (11) TMI 53

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.... and acrylic spun yarn was drawn and on 15-12-77 another sample was drawn. The test results reveal that the sample drawn on 30-11-77 contained 8.6% acrylic fibre and that drawn on 15-12-77 contained 11.8% of acrylic fibre. The percentage of non-cellulosic fibre was less than l/6th of the total weight of the yarn. Another sample drawn on 28-1-78 showed no presence of acrylic fibre. The Assistant Collector, after adjudication proceedings, confirmed the demand of duty on such yarn which was manufactured during the period from 30-11-77 to 27-1-78 @ Rs. 10 per kg. in terms of notification No. 133/77-CE, dated 18-6-77 as the petitioners had cleared the yarn in question manufactured during the relevant period at nil rate of duty without producing ....

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....in the circumstances of the case. They, however, do not deny that they never urged this point before the lower Authorities. He contended that in view of the undisputed facts viz., that the raw material in this case comprised of material in which wool and acrylic fibre put together predominated, the petitioners should get the benefit of notification No. 133/77 irrespective of the presence of about 8% of acrylic fibre. According to him, the word 'partly' appearing in the notification reproduced below should be read to mean 'Predominantly', taking into consideration the sense in which yam under Item 18B(1) of the Central Excise Tariff is described: "In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944....

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....f the proviso appearing below notification No. 133/77 on the ground that this yarn, which is partly produced out of acrylic fibre, had already paid the duty of customs at the rate of Rs. 30 per kg. at the time of importation. He argued that for this purpose, it was not necessary that the yarn should be spun entirely out of acrylic fibre and that the wool content should be deemed to be yarn spun out of acrylic fibre, even if the woollen content predominates vis-a-vis acrylic content, as has happened in this case. He further contended that even assuming the presence of a small percentage of acrylic fibre made the yarn in question liable to payment of duty at the rate of Rs. 10 per kg. in terms of the aforesaid condition appearing in Notificat....