ORDER
Gowri Shankar, Member (T)
1. Adjournment is sought by the advocate for the appellant on the ground that relevant records have so for not been made available in this matter. We do not find this a justifiable ground. If the appellant has engaged an advocate, chooses not to furnish the records to the advocate, that is its affair. We however do not see why we should keep the matter pending if the appellant is not interested in pursuing itself with the advocate. Accordingly we decline to adjourn, and having read the relevant papers and heard the departmental representative, proceed to decide the appeal.
2. The question for consideration in this appeal is whether the benefit of Notification 4/88 would be available to the fabrics manufactured by the appellant. The notification provides concessional rate of duty for fabrics falling under Heading 54.09 of the Tariff containing nylon filament yarn, whether or not containing fibres or yarn of cellulosic origin including cotton. It prescribes the duty of Rs. 0.75 per square metre for fabrics whose weight per square metre does not exceed 35 gms and Rs. 1.25 per sq. m. whose weight is in excess of this.
3. In the impugned order the Commissioner (Appeals) agrees that the fabrics in question are classifiable under Heading 54.09 of the Tariff. He says however within this broad category a fabric would be identified as nylon, cellulosic, etc., only with reference to “its major weight contents”. For this purpose he relies on Note 2A of Section 11X(1) (sic) of the Tariff. Therefore he proceeds to say that the product would qualify for inclusion in Heading 54.09, if the proportion of nylon exceeds 50% by weight. Since the nylon is less than 20% by weight for the fabrics, the remaining yarn of cellulosic origin would not qualify to be termed as nylon fabric for the purpose of notification.
4. In the light of the Commissioner (Appeals) the finding, the goods would be classifiable under Heading 54.09 of the Tariff. One of the conditions in the notification that goods are to be classifiable under this heading, is satisfied. What has to be seen is whether other conditions are specified. The notification exempts fabrics containing nylon filament yarn whether or not containing fibre or yarn of cellulosic origin, from the duty in excess specified therein. The condition two of the notification provides that the notification will not apply if the fabrics contain any other textile material except the textile material specified therein, that the weight of such other textile material exceeds five per cent, by weight of the total weight of the fabrics. The composition of fabric, in the statement of Collector (Appeals) is that yarn of cellulosic origin and nylon yarn that yarn being less than 20% by weight.
5. While the departmental representative reiterates the Collector (Appeals’) reasoning, it is our view that he has misdirected himself as to the scope of the notification. The Collector has in our view heard by deciding that since the weight of the nylon yarn does not predominate the fabric is not nylon and therefore is not entitled to the benefit. That however, is not what the notification provides as we have seen. It is applicable to fabrics containing nylon yarn, and not just fabrics in which the fabric yarn predominates by weight. Hence for the fabric containing nylon yarn, the benefit of notification would be available subject to the condition that paragraph of the notification being complied with. That condition also provides that the fabric contains only those textile material specified in the notification i.e. nylon filament yarn, yarns of cellulosic origin and therefore the percentage of nylon yarn is irrelevant. Hence for fabric containing nylon yarn the benefit of notification is completely available.
6. The appeal is accordingly allowed.
