ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-original No. 31/2002, dated 26-2-2002 by which the imported goods declared as “Polyster Warp Knit Fabrics (assorted stock of colour)” from Taiwan in the Bills of Entry No. 286293, dated 3-8-2000, 286498 and 286499 both dated 4-8-2000 has been held to be classified under chapter sub-heading of CTH 6001.92 which specifically covers the ‘knitted pile fabrics of man-made fibres’. The Commissioner noted that the test results obtained from the Chemical Examiner and the Textiles Committee to note that the sample clearly indicated that they were ‘pile fabrics’. The Textiles Committee report also certified the item to be 100% Polyster and the type of weave as “pile warp knitted”. Since the fabrics are knitted pile fabrics, and that chapter note 1(c) to Chapter 60 only elaborates that knitted pile fabrics even if they are impregnated or coated within, remain classified under heading 6001 and therefore he rejected the plea for classification of the item under CTH 6002 which covers “other knitted or crocheted fabrics”.
2. We have heard Ld. Counsel Shri G.N. Raiwal for the importer-appellant and Shri A. Jayachandran, Ld. DR for the Revenue.
3. Ld. Counsel submitted that although they have not disputed the test results, the fact remains that the test results indicated that the item is
“pile warp knitted”. When it is a ‘pile warp knitted’, it has to go in the residual category of “other”. He submitted that this chapter cannot be made redundant which is meant for ‘warp knitted’. He pointed out that the heading
60.01 is for ‘pile fabrics knitted or crocheted’ but there is no mention of ‘warp knitted’ and hence when the item is ‘warp knitted’ which is specifically covered under ‘warp knitted’ and not under ‘pile fabric’. He pointed to Interpretative Rule 3(c) which clearly lays down that when both the headings are identical, then the last of the heading should be preferred. He also pointed out that the Revenue has not relied on any market enquiries which was incidentally an oral one. He also pointed out that they have discharged the burden of proof in the classification matter in terms of Apex Court judgment rendered in U.O.I. v. Garware Nylons Ltd., 1996 (87) E.L.T. 12 (S.C.) and hence the classification prayed by them should be accepted. He also contended that the Commissioner cannot import his personal knowledge and the said inference drawn by the Technical Members of the Tribunal was not accepted by the Apex Court in the case of Hindustan Ferodo Ltd v. CCE, Bombay, reported in 1997 (89) E.L.T. 16 (S.C.). He also referred to the judgment of Ess Dee Carpet Enterprises v. U.O.I. and Ors., reported in (1990) 1 SCC 461 which refers to the process of weaving. The meaning of “warp & weft” is also referred to in the cited judgment.
4. Shri A. Jayachandran, Ld. DR submitted that Revenue is not relying on the oral market enquiries. He submitted that both the test results were in favour of the Revenue. He submitted that ‘weft’ and ‘warp’ were the process of manufacture of a fabric. The warp means yarn arranged lengthwise on a loom. The fabric which is woven includes the weft which means yarn woven across the width of the fabric through the lengthwise yarn. It is his submission that the process of ‘pile’ is raised loops, cut interlacings of double cloths or tufts (cut loops), and other erect yarns or fibers deliberately produced on cloth which form part or part of the surface of the fabric. He submits that once the pile becomes a cloth it is referred to as ‘pile fabric’. All pile fabrics will have ‘warp & weft’ and all pile fabrics are excluded from heading
60.02 by specific exclusion clause as noticed from explanatory note appearing at page 908. He also referred to chapter 58 which deals with pile fabrics which are not covered under chapter 60. He pointed out that in HSN at page 870, the warp fabric has been defined as ‘warp pile fabrics’ (velvets, plushes, moquettes etc.) may be produced by raising the pile warp over wires inserted in the direction of the weft. The loops thus formed are cut either during the weaving or subsequently, or occasionally left uncut for looped or uncut pile fabrics. The loops or tufts of cut pile are held in place by the weft threads. He further read out other portion pertaining to clarification of ‘warp pile fabric’ which are produced by weaving two fabrics face to face with a common pile warp. He submitted that where a pile has arisen whether as a warp pile or weft pile both come within the ambit of ‘pile fabric’. Therefore, they cannot be distinguished to take out ‘pile fabric’ to bring it under heading 60.02 as “other fabrics warp knitted”, as the commodity by itself are obtained by gallon knitting machine. The heading 60.02 does not have the term “pile”. Therefore, the term ‘pile’ cannot be read along with ‘warp knitted’. The ‘warp knit’ has a different connotation as per HSN and it does not include ‘pile fabric’ which has a specific heading. He submits that when there is a specific heading, the Rule 3(a) of Interpretative rule is required to be applied
and not Rule 3(c) as contended by the importer-appellant. Therefore, the Commissioner has correctly classified the goods. Ld. DR pleads that in view of the evidence on record in the form of test results and HSN notes relied upon by Revenue and there is no counter evidence placed by the importer-appellant, the appeal is required to be dismissed by confirming the impugned order.
5. We have carefully considered the submissions and have gone through the records and the case-law. The report of the Chemical Examiner on the product is “each of the three samples is in the form of a cut piece of coloured knitted pile cut fabric. Each is made wholly of man made filament yarn of polyster. Each is a warp knit fabric”. The test report of Textiles Committee also shows the type of weaving to be “Pile Warp Knitted”. The item being pile fabric is not in doubt at all. Revenue has classified the item under CTH 60.01 which has a description, “pile fabrics, including “long pile” fabrics any terry fabrics, knitted or crocheted”. The HSN under this heading in page 907 is as follows :-
“Unlike the woven fabrics of heading 58.01, the products of this heading are obtained by knitting. The following methods of production are those mainly used :-
(1) a circular knitting machine produces a knitted fabric in which, by means of an additional yarn, protruding loops are formed; afterwards the loops are cut to form pile and thus give a velvet-like surface;
(2) a special warp knitting machine knits two fabrics face to with a common pile yarn; the two fabrics are then separated by cutting to produce two knitted fabrics with a cut pile;
(3) textile fibres from a carded sliver are inserted into the loops of a knitted ground fabric as it is formed ("long pile" fabrics);
(4) textile yarn to form loops ("imitation terry fabrics") (see General Explanatory Note). Such fabrics have rows of chain stitches on the back of the fabric and they differ from the pile fabrics of heading 58.02, which are characterised by rows of stitches having the appearance of running stitches along the length of the back of the fabric.
Knitted or crocheted pile fabrics, impregnated, coated, covered or laminated, remain classified in this heading.
The heading does riot include :
(a) Artificial fur of heading 43.04.
(b) Woven pile fabrics (heading 58.01)
(c) Knitted or crocheted fabrics, tufted (heading 58.02)"
6. On a reading of the above explanatory notes, it is clear that ‘pile fabrics’ is produced both on circular knitting machine as well as on special warp knitting machine. Therefore, once the fabrics has become pile fabric by methods of production of circular knitting machine or special warp knitting machine, they come within the category of pile fabrics under heading 60.01. The claim of the appellant is that the item to be classified under residuary heading “other fabric warp knitted”. The explanatory notes at page 908 under this heading clearly excludes pile fabric of heading 60.01. Ld. Counsel desired us to read the heading “other fabric warp knitted” to include even ‘pile fabric’. There is no indication in the explanatory notes that ‘warp knitted fabric’ includes ‘pile fabric’. A pile is obtained as per the Fairchild’s Dictionary of Textiles at page 436 is as follows :-
“Pile – Raised loops, cut interlacings of double cloths or tufts (cut loops), and other erect yarns or fibres deliberately produced on cloth, which form all or part of the surface of the fabric. May be warp pile, filling pile or knotted pile, and may be loops produced by weaving an extra set of yarns over wires which are drawn out of the fabric as weaving progresses. Plain wires leave uncut loops, wires with a razor-like blade at one end cut the loops, leaving a cut pile surface (plush). Pile fabric may be a double cloth structure woven face to face, with an extra set of yarn woven into both fabrics, interlacing with each cloth alternately as often as possible; the two fabrics are cut apart by a traversing knife which severs the pile yarns, producing two fabrics with a cut pile face (velvet). Pile should not be confused with nap Corduroys are another type of pile fabric where long floats on the surface, made by an extra weft, are slit, causing the pile to stand erect.”
7. The ‘warp pile’ is defined in page 632 as follows :-
“Warp Pile–An extra set of warp yarns that forms the pile surface of fabric. Warp pile fabrics are known as double-woven pile fabrics (which see) and include velvet, velours, etc. With these a travelling knife cuts the binder (or pile) warp which connects top and bottom fabric, thus cut warp becoming the pile. Warp pile fabrics may also be single cloth in which the pile ends are looped over knife-edged wires which run the width of the loom. The wires cut the ends as they are withdrawn producing a cut pile. These fabrics include mohair pile plush, mohair cut frieze, etc. A looped pile may be produced by employing wires without knives. Uses : upholstery fabrics.”
8. Therefore, in terms of the definitions of ‘pile fabrics’ appearing in explanatory notes at page 907 along with the definition appearing in Fair-child’s Dictionary of Textiles, it is clear that pile is obtained either on warp or weft. The explanation of warp & weft has been brought out in the judgment of Ess Dee Carpet Enterprises v. U.O.I. & Ors. (supra) in para 4 which is reproduced herein below :-
“4. It is not disputed that the material with which the carpets are made is wool which is one of the materials mentioned in the Schedule, namely, textile made wholly or in part of cotton or wool or jute or silk, whether natural or artificial. The activity of manufacturing carpets is generally understood as the weaving of carpets and the man who is engaged in such activity is popularly known as a ‘carpet weaver’. Weaving means to form a fabric by interlacing yarn on a loom. It also means the method or pattern of weaving or the structure of a woven fabric. The warp means yarn arranged lengthwise on a loom. The fabric which is woven includes the weft which means yarn woven across the width of the fabric through the lengthwise yarn. Thus the activity of the weaving involves passing of the weft through the warp. While doing so even if there are any knots in the yarn still the activity is weaving. The mere fact that there is knotting of the yarn, the fabric which is ultimately produced does not cease to be a textile fabric. The fact that the Handicrafts Board has issued certificate under the Import Trade Control Policy Handbook of Rules that carpet is a product of handicrafts does not in any way improve the matter. Even then the carpets do not cease to be textiles. That certificate is not enough since we are very clear that the activity of making carpets though it involves knotting, in substance, amounts to weaving and the carpet is a fabric which is woven. Thus, it comes within the meaning of the expression “textiles” as explained in Clause (d) to the Explanation of Schedule I to the Act.”
9. It is noticed that to bring the fabric into existence, there has to be
warp or weft by which the yarn is arranged lengthwise and across the width of the fabric through the lengthwise yarn. When the pile has arisen, it has arisen either both on warp & weft and hence fabric is referred to as ‘pile fabric’. The pile fabric refers to ‘pile’ which has been knitted either on warp & weft. There is no category of ‘pile fabric’ for heading as a ‘warp knit’ under heading 60.02. All pile fabrics arisen both on warp or weft are covered within the term ‘pile fabric’ and are excluded from under heading 60.02 in terms of explanatory notes appearing at page 908. There is no dispute that the item is a ‘pile fabric’ and it is not described as to whether ‘pile’ has arisen on warp or weft. The test carried out by the Chemical Examiner or the Textiles Committee revealed the pile having arisen on warp. It does not mean that the item is ‘warp knitted fabric’ the pile being present. Once the pile has arisen on the fabric, the fabric becomes a ‘pile fabric’ in terms of explanatory notes appear-: ing at 907. Hence, when there is a specific heading, the classification has to be adopted in terms of Rule 3(a) of Interpretative Rules and not under Rule 3(c) which is to be applied only when the classification is not determinable in terms of chapter heading or explanatory notes. Further, note 1(c) of chapter 60 also clarifies that knitted or crocheted ‘pile fabric impregnated, coated, covered or laminated, remain classified in heading 60.01. In that view of the matter, the findings recorded by the Commissioner in the impugned order is correct and there is no infirmity in the same. Further, the Tribunal had given an opportunity to the appellant while remanding the matter for de novo consideration to produce in their favour. Revenue has brought out the evidence by relying on the test results as well as on the explanatory notes. The appellants have not produced any counter evidence to show that there is no other fabric by name ‘warp knitted fabric’ which is having a pile and it is not covered under chapter heading 60.01. As stated, there is no dispute that there is ‘pile’ on the fabric and hence it is a ‘pile fabric’ requiring to be classified under residuary heading under the description of Customs Tariff Heading 6001.92. There is no infirmity in the order impugned and hence the appeal is dismissed.