COMMISSIONER OF CENTRAL EXCISE, AHMEDABADversusM/S. SUSMA TEXTILE PVT. LTD.

A        COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD
                              v
                 M/S. SUSMA TEXTILE PVT. LTD.

                                MAY 5, 2004
B
             [RAJENDRA BABU, CJ. AND G.P. MATHUR, J.]

          Central Excise Tariff Act, 1985-Tariff Heading No. 52.06-Cotton
  fab11ics stiff and heavily sized with starch gum and inorganic fillers-
   Classification as 'Buckram' under heading 59.01-Held: Fabric having
C undfrgone a process ofpadding by applying natural starch on the side of
   the fabric and not showing stijji1ess ofpermanent or durable nature and
   also not heavily sized fabric-Hence not classifiable under heading 59.01
   but under heading 52.06.

D       Respondents are engaged in the manufacture of cotton fabrics
  which is stiff and heavily sized with starch gum and inorganic fillers.
  Respondents classified the product under Heading 59.06 as it was
  subjected to the process of bleaching and finishing. The appellant-
  excise department classified the product under heading 49.01 on basis
E oftlje report that the sample is in the form of open weave cotton fabrics
  heavily sized and stiff with starch gum and inorganic fillers
  on treatment with hot water the fabrics loses all its stiffness.             r
  The department issued show cause notice to the respondents
  dem,anding differential duty. However, Assistant Commissioner held
F that the cotton fabrics were correctly classifiable under Heading 52.06
  and dropped the demand raised. In appeal Collector (Appeals) held
  t~at the product in question is specifically covered under Heading
  59.01, tariff entry for stiffness textile fabrics. However, Tribunal held
  that the cotton fabrics though heavily sized do not have permanent
  stiffness to be treated as similar to 'Buckram', thus, classifiable under
G Heading 52.06 and not Heading 59.01 of the Act. Hence the present
  appeals.

         Appellant-excise department contended that the Tribunal has
    gone on the basis of issue of permanent stiffness and not dealt with the
H   other 'nspect whether the fabric in question is heavily sized or not.
                                       168
                           C.C.E. v. SUSMA TEXTILE PVT. LTD.                   169

                Respondents contended that the stiffness as contemplated under A
          Chapter 59 has to be of permanent or durable nature as 'Buckram'
          is a fabric which has a permanent stiffness.

               Dismissing the appeals, the Court

                HELD : 1.1. For classifying cotton fabrics, stiff and heavily sized B
          with starch gum and inorganic fillers manufactured by the respondents
          under heading 59.01 of the Central Excise Tariff Act, 1985 the
          conditions to be fulfilled are that the fabric is a stiffened textile; that
          the stiffness is of durable and permanent in nature; and that the fabric
          is heavily sized. (174-E-Fl                                                 C
               1.2. In the instant case, the Tribunal found that the fabric of the
          respondents do not have permanent or :urable stiffness which is
          essential for a fabric to be classified as 'Buckram' in view of definition
          as understood ordinarily and as is referred to in the authoritative D
          textbooks. Further, the report given by the Chemical Examiner itself
          indicates the process undergone by the respondents' fabric is only that
          of padding and does not show any stiffness of permanent nature.
          Therefore, a fabric, which has undergone a process of padding by
          applying natural starch .on the side of the fabric, cannot be classified E
          as 'Buckram'. (174-G-H; 175-A; 174-GI.

               1.3. When the several ingredients have to be satisfied, even if one
          ingredient is not satisfied, namely, that the stiffness has to be of
          permanent and durable nature, the view taken by the Tribunal does
          not call for any interference and also in none of the present cases, there F
          is any heavily sized fabric. Thus, these are not the fit cases to be
          remanded back for fresh consideration on the question of heavily sized
          fabric. (175-B-CI

              Collector of Central Excise, Aurangabad v. Solapur Zilla Vinkar G
          Sahakari Federation, (1998) 104 ELT 402, referred to.

               Dictionary of Textiles by Fairchild, referred to.

.......
               CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1081 of
          1~8.                                                                       H
    170                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A        From the Judgment and Order dated 21.11.97 of the Central Excise
    Customs and Gold (Control) Appellate Tribunal, West Regional Bench a;
    Mumbai in F.O. No. 5123/97/WRB in A. No. E/917/91-SB (WR).

                                       WITH
B
         C.A. Nos. 8559/97, 1052, 5010/98, 3649, 3707, 4223/99, 5557, 69761
    2001 and 8973 of 2003.

          R.P. Bhatt, Mrs. Nisha Bagchi, Ms. Smeeta Inna, B. Krishna Prasad,
C K.C. Kaushik, M.N. Shroff, C.M. Shroff, V. Lakshmi Kumaran, Alok
    Yadav, Madhav Rao, Vishwanath Shukla, V. Balachandran, Darpan
    Wadhwa, Sandeep Mittal, Ms. Ruby Singh Ahuja, Ramesh Singh, Ms. Bina
    Gupta, Mrs. Vanita Bhargava, Ms. Nina Gupta, Rajendra Singhvi, Ashok
    Kumar Singh and Rajesh Kumar for the appearing parties.

D         The Judgment of the Court was delivered by

          RAJENDRA BABU, CJ. : The question that falls for consideration
    in this batch of cases is as to the classification of the bleached sheeting
    which is heavily sized and manufactured by each of the respondents and
E   whether the same falls under Heading 52.06 of the Central Excise Tariff
    Act, 1985 [for short 'the Act') or under Heading 59.01 as sought by them.

          The respondents are engaged in the manufacture of cotton fabrics
    which is stiff and heavily sized with starch gum and inorganic fillers. The
F   respondents classified this product under Heading 52.06 by declaring their
    product as subjected to the process of bleaching and finishing. However,
    later on, when the Department inspected the unit of the respondents, they
    thought that the product in question will have to be classified under
    Heading 59 .0 I. Sample of the product was taken for testing and the report
    thereto is that the sample is in the form of open weave cotton fabrics
G   heavily sized and stiff with starch gum and inorganic fillers on treatment
    with hot water the fabrics looses all its stiffness. On this material, a show
    cause notice was issued to the respondents demanding differential duty for



H
    difft"nint periods. The Assistant Commissioner, Central Excise, by his order
    made on 16.8.1989, dropped the demand raised in the show cause notice
    by holding that the said cotton fabrics were correctly classifiable under
                                                                                    -
    C.C.E. v. SUSMA TEXTILE PVT. LTD. [RAJENDRA BABU, CJ.] 171

Heading 52.06 and approved two classification lists accordingly.             A
      The matter was carried in appeal to the Collector [Appeals] who
allowed the appeal and affirmed the demand of duty by holding that the
product in question is specifically covered under Heading 59.01 which
provides a specific tariff entry for stiffness textile fabrics. The matter was B
further carried to CEGAT. The Tribunal held that the cotton fabrics though
heavily sized do not have permanent stiffness to be treated as similar to
'Buckram' and accordingly classifiable under Heading 52.06 and not under
Heading 59.01 of the Act. Hence these appeals.

      We may, however, notice that in Collector of Central Excise, C
Aurangabad v. Solapur Zilla Vinkar Sahakari Federation, (1998) (104)
ELT 402, the tribunal held that stiffened fabrics generally used in the
interior of garments having been processed into bleached and grey sheeting
by applying topioca starch, maize starch, french chalk power and delomits
which render the fabrics stiffening effect, are classifiable under Heading D
52.06 of the Act and not under Heading 59.0 I thereof. The matter was
carried in appeal to this Court in Civil Appeal No. 3965 of 1998 and this
Court, on 22.2.1999, dismissed the same, both on the ground of delay and
on merits.
                                                                             E
        The Revenue contended:

         I.    that specific description of Heading 59.01, viz., textile
              fabrics coated with gum of amylaceous substances of a kind
              used for the outer cover of book or the like is satisfied in   F
              this case;

        2.    Explanatory Note to HSN made it clear that not only cloth,
              plain weave woven fabrics, usually of cotton, linen or man-
              made heavily coated with gum or amylaceous substances
              which is used for book binding, but also such cloth with G
              other end-uses, would get cover under this heading.

     The tribunal held that the. Board by their instructions issued on
2.9.1988 had clarified that for classifying such products under Heading
59.03, the textile fabrics should have a continuous and adherent films or H
    172                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A layer on one side of the fabric surface and the fabric should be impervious
  and should satisfy the conditions prescribed in Note 2 of Chapter 59. They
  also adverted to letter issued by the Ministry of Finance, Department of
  Revenue dated 7 .12.1989 wherein it had been confirmed that bleached and
  sized cotton fabrics manufactured by them merit classification under
B Chapter 52 as these fabrics were neither coated nor impregnated but only
  si;zed with starch. On behalfofthe Revenue, the contention put forth before
  the tribunal is that the scope of expression 'Buckram and similar stiffened
  textile fabrics' could not be restricted by reference to first half of the
  heading relating to coating and should be interpreted in its ordinary manner
C and that if the stiffened fabrics is similar to Buckram, tracing cloth, book
  binding cloth, etc., it would be appropriately regarded as stiffened fabrics
  covered by sub-heading 5901 since the general heading of processed
  fabrics falling under sub-heading 5206. Further, the book binding cloth
  would be covered by the expression 'Buckram' and similar textile fabrics
  of sub-heading 5901. Several text books and dictionaries were also referred
D before the tribunal. All the contentions advanced on behalfof the Revenue
  were refuted by the learned counsel appearing for the assessees and
  elaborate arguments were submitted before the tribunal that the product in
  question is not a 'Buckram' or something akin to 'Buckram' inasmuch as
  'Buckram' referred to permanently stiffened fabrk and once the interstics
E of cotton fabrics were filled and treated with gum, then alone it would come
  under Chapter 59 and in the present cases the item is porous padded and
  the interstics are not filled and, therefore, the product cannot go under
  Chapter 59 at all. The tribunal noticed firstly as to the maintainability of
  the appeal and thereafter on merits of the matter. The tribunal proceeded
F on the basis that the burden of classification is on the Department and no
  evidence had been placed by the Department to show that the product is
  a 'Buckram' and it requires to be classified under Chapter 59 and
  Explanatory Note IV to Heading 59.01 indicates that 'Buckram' and
  similar stiffened textile fabric of a kind used for that foundations would
  fall under this heading. There is also an indication that certain varieties of
G 'Buckram' and are similar fabrics made by pasting together to such
  stiffened fabrics and used mainly in the manufacture of hat foundations of
  Heading 65.07 would also be fall under this heading and that the textile
  fabrics coated with gum and amylaceous substances of a kind used for
  paper coverings of books or the like, tracing cloth, prepared binding
H 'Buckram' and similar stiffened textile fabric of a kind used for hat
    C.C.E. v. SUSMA TEXTILE PVT. LTD. (RAJENDRA BABU, CJ.] 173

foundation would be covered under this heading. After adverting to certain A
definitions in the Dictionary of Textiles held that an impregnated fabric is
one in which interstics between the yam are to be completely filled with
impregnating compound throughout the thickness of the material. The
definition of 'Buckram' and Library Buckram also indicates that it is
heavily sized. The definition of sizing indicates that it is a generic term    B
for compounds when applied to yam or fabric form a more or less
continuous solid film around the yarn and individual fibres. The chemical
examiner in his report had stated that each of the eight samples are in the
form of open woven bleached cotton fabrics sized with starch and each is
somewhat showdy. On treatment with hot water, each looses of stiffness.
The interstics between the yarn were not closed. The overall count is less C
than 51 as determined on the basis of yams taken out from the fabrics in
each case. Therefore, the test result indicates that the interstics are not filled
in these cases and there is no permanent stiffness. The requirement of
heading 59 clearly shows that the textile fabric has to be stiffened and the
definitions which are relied by the Revenue indicates that the sizing have D
to be heavy and the interstics have to be filled and the stiffness has to be
permanent; that the test results do not support the department's case and
also there is no specific finding that the material is a 'Buckram'. They also
adverted to the tariff advice No. 36.84 dated 27 .7.1984 issued to all the
Collectors indicating that the object of exemption is to cover such fabrics E
which are treated only to achieve a temporary effect of sizing [stiffening]
and gloss and addition of wetting agents, optical whitener, fatty matter and
fillers are meant only to help padding process so as to give a temporary
brightness to sized fabrics, to soften the starchy film left on the fabric and
to give a better and fuller appearance. However, these additives get F
removed from the fabric when the starch is washed up. Based on this
material, the appeal filed before the tribunal was rejected .
                             .   ,          '
     The learned counsel forthe appellants contended that the tribunal has
gone on_ the basis of issue of permanent stiffness and not dealt with other
aspect whether the fabric in question is heavily sized or not.              G
                                      f
         Heading 59.01 reads as follows:

         "Textile fabrics coated with gum or amylaceous substances, of a
         kind used for the outer covers of books or the like; tracing cloth; H
    174                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A            prepared painting canvas; buckram and similar stiffened textile
             fabrics."

        In Fairchild's Dictionary of Textiles, which is an authority to the text
    book on the matter, sets out what 'Buckram' means :
B
             "A plain weave, coarse, open fabric heavily sized and used
             principally as stiffener which is placed between the lining and
             surface cloth of the garment to give it shape or form. Also used
             for hat shapes, book binding, etc. Made with cotton, linen, hemp,
             hair etc. Also made by gluing two openweave, sized cotton fabrics
c            together. Usually white or plain collors. Also see Library Buckram.
             2. Originally a costly material from Bokhara, Southern Russia.
             Later, a rich 16th Century English woollen fabric used for church
             vestments."

D            "'A heavy flat duck or Osnaburg, stiff and durable starch filled or
             pyroxylin treated and given a vellum, linen-like finish. Used
             especially on library and reference books."

          The Department in order to succeed in classifying the products of the
E respondents to fall under heading 59.01 of the Act will have to fulfil the
    following conditions:

          I. That the fabric in question is a stiffened textile.

          2. That the stiffness has to be durable and permanent in nature.
F
          3. That the fabric is heavily sized.

        It is the stand of the respondents that the stiffness as contemplated
  under Chapter 59 has to be of permanent or durable nature as 'Buckram'
G is a fabric which has a permanent stiffness. A fabric, which has undergone
  a process of padding by applying natural starch on the side of the fabric,
  cannot be classified as 'Buckram'. The tribunal has found that the fabric
  of the respondents do not have permanent or durable stiffness which is
  essential for a fabric to be classified as 'Buckram' in view of definition
H as understood ordinarily and as is referred to in the authoritative text books.
       C.C.E. v. SUSMA TEXTILE PVT. LTD. [RAJENDRA BABU, CJ.] 175

The report given by the Chemical Examiner on which the Department has A
placed reliance itself indicates the process undergone by the respondents'
fabric is only that of padding and does not show any stiffness of permanent
nature.

      When the several ingredients have to be satisfied, even if one B
ingredient is not satisfied, namely, that the stiffness has to be of permanent
and durable nature, we do not think that the vi~w taken by the tribunal calls
for any interference on our hands. In addition, we may notice that in none
of the cases presently involved, we have any heavily sized fabric.
Therefore, that aspect need not detain us.
                                                                             c
     In the circumstances, we do not think that these are fit cases where
we should remand the matter for fresh consideration on the question of
heavily sized fabric. We affirm the view taken by the tribunal and dismiss
these appeals.
                                                                             D
N.J.                                                  Appeals dismissed .




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