ORDER
Gowri Shankar, Member (T)
1. The issue for decision in this appeal is the classification of the textile fabrics manufactured by the appellant. In the classification list filed by it, which was approved by the department it was classified under Heading 52.06. The test by the department of a sample drawn in February, 1988 apparently showed the goods to confirm the goods to buckram or similar fabrics. On this basis notice was issued proposing classification of the goods under Heading 59.01 and recovery of differential duty for the period from March, 1986 – January, 1988. In the order impugned in the appeal the Collector has confirmed the demand. Hence this appeal.
2. The report of the test of samples which were drawn in February/1988 is not available; neither side was able to produce it. However the samples of goods manufactured by the appellant were tested in 1983,1987 and 1988. The reports of the samples tested in 1987, 1988 and 1989 were that they were heavily sized fabrics made wholly of cotton. The report of the Deputy Chief Chemist in June, 1988 says that “it does not appear to be impregnated/coated as the inters tics or open spaces between the yarns are not closed”. Advocate for the appellant relies heavily on this. He says that for the goods to fall under Heading 59.01, they have to be coated fabric and that the process of sizing to which the fabrics were subjected does not amount to coating. Coating, he says is a process in which the fabric coated is covered with the coating material. However we do not see that this point is only of limited relevance. Heading 59.01 specifies four categories of goods – Textile fabrics coated with gum or other amylaceous substances, of a kind used for the outer covers of books or the like; tracing cloth; prepared painting canvas; buckram and similar stiffened textile fabrics. Hence even if the fabrics were not coated, as long as they fall into any of the other three categories they would be classifiable under this heading.
3. The departmental representative’s contention that the fabrics have been stiffened by the processes to which the goods were subjected and that therefore the goods fall under the category of buckram and similar stiffened textile fabrics.
4. It is contended for the appellant that the goods manufactured by it were similar to goods manufactured by another processor Sunita Textile Ltd. Vapi and this Tribunal has held that the goods manufactured by Sunita Textiles are not classifiable under Heading 59.01 in its order in C.C.E. v. Sunita Textiles Ltd. – 1993 (67) E.L.T. 932. In the test report dated 16-8-1991, the Assistant Chemical Examiner at Baroda had, while giving his report on the result of the test of the sample drawn from the appellant’s factory invited the attention of the Supdt. to his office letter containing the technical opinion which was given with regard to testing of fabrics manufactured by Sunita Textiles and said that the process of manufacture undertaken by the present appellant was similar to the manufacture by Sunita Textiles. The departmental representative contends that this does not mean that the fabrics manufactured by the appellant and that of Sunita Textiles were identical. It is difficult to agree with this. We do not see for what reasons than this, that the Assistant Chemical Examiner would have considered it necessary to draw the attention of the department to the report which he gave in the case of Sunita Textiles. The fact that he chose to do so is a strong indicator that the goods in the present case, having been manufactured by similar processes would have the same characteristics as the goods manufactured by Sunita Textiles.
6. Even if this is not conclusive, there is another factor which is in favour of the appellant. The Tribunal in its decision referred to above had held that the fabrics manufactured by Sunita Textiles were not in the nature of buckram or similar fabrics was that the stiffening caused to the fabric was not permanent. No technical literature was produced before us to show that buckram and similar materials had to be permanently stiff. However it is not in dispute that buckram is used for binding books and as a lining for fabric garment. It therefore has to withhold pressures put up as in the use to which it would act of closing and opening the covers of the books, folding/creasing of garment. The requirement of stiffness being durable therefore is essential. The goods manufactured by the appellant were shown to lose their stiffness when they were dipped in water. This is another factor in favour of the appellant.
7. The order of the Collector in effect does away with the difference between buckram and stiffened fabrics. It is common knowledge that there was a practice prevalent, and still in vogue of subjecting cotton fabrics to a coating to starch after they were washed, by dipping them in starch in order to give them a stiffness which enhances their appearance and provides some degree of resistence to creasing. If by subjecting fabrics to stiffening to starch they become buckram or similar fibre, it would follow that every cotton fabric which is stiffened by starch would be considered buckram or stiffened fabric. This can obviously not be the case. Buckram and similar fabrics are fabrics known in the trade as such and intended for specific use to which they have been given characteristics which must be durable. In fact the Indian Standard Glossary of Textile Terms Woven Fabrics Second Revision defines buckram as a “stiff fabric made by impregnating a lightweight open cloth with adhesives and fillers”. Fairchild’s Dictionary of Textiles also emphasises that buckram is a coarse open fabric. There is no dispute that the cut of yarn contained in the fabric was between thirty and fifty. It is difficult to consider this as a coarse yarn and hence the fabric as coarse fabric. As against in addition to the evidence advanced by the appellants of the similarity of these fabrics to the manufacturer by Sunita Textiles which we have already dealt with supports the view that the goods are not buckram or similar stiffened fabrics.
8. The departmental representative raises an alternative contention. The Board has clarified in its letter dated 6-2-1991 that Heading 59.01 was specific for stiffened type of fabric and the expression “buckram and similar stiffened textile fabric” occurring in this heading would not be restricted by reference to the first heading to coated fabrics and “should be interpreted in its ordinary meaning”. The Board in its letter has said that heavily sized stiffened cotton fabrics would be covered under Chapter Heading 59.01 of the Central Excise Tariff. While the reason for this conclusion is not specifically stated it is evidently based on a tariff conference of Collector as a result of the proceedings of which the circular was issued, which felt that stiffened fabrics is similar to buckram, tracing cloth, book binding cloth etc. and it would be appropriately regarded as stiffened fabric covered by Heading 59.01.
9. The first difficulty that arises is the emphasis on “heavily sized” stiffened cotton fabrics. None of the textile dictionaries that we have referred to make a distinction between heavily sized fabrics and fabrics that not heavily sized. Further it is not correct to say that all the categories of goods specified in Heading 59.01 are heavily sized or even stiffened. As we have said the heading is in four parts. Of this, it is only goods in the first, in the last part that is, textile fabric, buckram and similar goods or stiffened goods which are stiffened. Tracing cloth is not subjected to stiffening. The HSN Explanatory Note indicates that tracing cloth is processed so as to render it smooth and more or less transparent. Hence it is obviously not stiffened. The explanatory notes also indicate that prepared canvas for binding, while it is stiffened specially coated on one surface obviously in order to ensure that it is able to take upon itself the paint or other colouring material which would be applied to it by a paint. It is therefore really speaking only the fabrics in the first and last category that are subjected to sizing. Therefore, the premises upon the Board’s order proceeds, upon the similar proceedings that all fabrics under this heading are stiffened is incorrect. It would therefore not be correct to say that, advice these fabrics under Heading 59.01 will not necessarily be stiffened.
9. The appellant has also a strong case on limitation. Notice was issued to it to classify the goods covered by classification list in 1988 under Heading 59.01. This notice however was vacated by the order of the Assistant Collector. The fact that order has been appealed is no answer to the point made by the appellant that the department was aware that the goods could alternatively be classified under Heading 59.01. In addition, the statement made in the classification list that the appellant was only engaged in processing fabrics does not constitute suppression or misdeclaration. The appellant has nowhere stated that it did not undertake processes which would result in the fabrics which would classify under Heading 59.01. The appellant has therefore not suppressed any facts and extended period will not apply.
10. Appeal allowed. Impugned order set aside. Consequential relief.