JUDGMENT

Dr. B.P. Saraf, J.

. The question that arises for the determination in this batch of writ petition is whether the fabric imported by the petitioners fall within the category of goods described as "artificial fur cloth" which is the relevant item permissible for import against REP licence under para 5 of Appendix 17 read with serial D. 2.2(f)(vi) of the Import and Export Policy for April 1985 - March 1988.

2. The material facts relevant for determination of the controversy being identical in all these petitions, the facts of one of the writ petitions viz., Writ Petition No. 904 of 1987 are being briefly stated.

3. The petitioner imported certain fabrics which were described as 'artificial fur cloth'. This import was made under the provisions of Appendix 17 of the Import and Export Policy, April 1985 - March 1988 on the strength of a REP licence transferred in his favour by the original licensee. The petitioner filed bills of entries with the respondents for clearance of these goods. The clearance was not given by the respondents as, according to them, the goods imported by the petitioner were in fact not artificial fur cloth but velvet which is not allowed to be imported under a REP licence.

4. Aggrieved by this action of the respondents, the petitioner filed this writ petition. Evidently, there is no dispute in these cases about the eligibility of the petitioners to import "artificial fur cloth". The real dispute is whether the goods imported by the petitioners are, in fact, artificial fur cloth or not. The answer depends on the interpretation of the item "artificial fur cloth".

5. Before proceeding further, it may be expedient at this stage to refer briefly to some of the provisions of the Import and Export Policy 1985-1988. Appendix 17 to the policy contains, inter alia, the description of materials allowed for import against each export product covered by the policy as well as other conditions relating thereto. Para 5 of the said Appendix provides that no import of an item appearing in Appendix 2 shall be allowed against REP licences, except if an item appearing in Appendix 2 Part-B is specifically described for import either under Col. 4 or under Col. 5 of Appendix 17 or against an Advance/Import Licence issued under the Policy. Against export product in serial No. D. 2.2 namely "Leather and Leather Goods and Other Animal Products - Light categories of travel and other leather goods like attache cases, brief cases, ladies hand bags, wallets, leather garments, purses, leather hand gloves other than industrial leather gloves covered by Sl. No. D. 2.4".

Column 4 permits the import of goods mentioned in items (a) to (i). Item (f)(vi) which is relevant for the purpose of the present controversy reads :

"(f) Trimmings and embellishments for leather goods viz.,........

(vi) Artificial fur cloth."

This item also appears in column 4(a)(xx) against Serial No. 0.1. Thus "artificial fur cloth" is specified in column 4 and, as such, this is one of the items which can be imported against the REP Licence.

In Appendix 2 Part-B the following item has been specified under entry 31 :

"(31) Fabrics, made from man-made fibres/yarns (excluding uninked nylon ribbon tape from 1/2" to 18 1/2" both the ends electrically welded required for the manufacture of type-writer/computer ribbons)."

As earlier stated, para 5 of Appendix 17 prohibits import of this item except if it is specifically described for import under column 4 of Appendix 17 of the Policy. What is specified in column 4 is "Artificial Fur Cloth". What can be imported is, therefore, "artificial fur cloth". No other fabric can be imported.

6. We are, therefore, to examine whether the goods or the fabrics imported by the petitioners meet the description of "artificial fur cloth" or not.

7. The petitioner relies on the description given by him in Bill of Entry as "artificial fur cloth". He also refers to some clearances of identical goods given by the respondents in the past, treating such goods as artificial fur cloth. The submission is that there is no material with the respondents to hold that the goods in question are not artificial fur cloth and that being so, they were not justified in not allowing their clearance as artificial fur cloth.

8. This submission is opposed by the respondents. The contention of the respondents is that what has been imported by the petitioner is not artificial fur cloth, but velvet which is actually nothing but man-made fabric. Reliance is also placed on the report of the Chemical Examiner, Customs, to whom the sample of the product was forwarded for analysis. The report is as follows :

"The spl. is cut piece of woven pile fabric having short acrylic piles % Pile = 64.1 Blended spun yarns of polyester & viscose = balance. It is composed of Polyester = 53.4% Viscose & balance.

App. pile lgth = 4 mm

Sd/- Sd/-"

According to the Respondents, it is clear from the analysis report that the fabric imported by the petitioner is not "artificial fur cloth" but velvet.

9. We have carefully considered the rival contentions. No doubt, artificial fur cloth is also fabric. It is also one of the species of the fabric. But what is allowed to be imported under Appendix 17 is only "artificial fur cloth" - not all fabrics. On the other hand, by virtue of para 5 of Appendix 17 read with item 31 of Appendix 2 Part-B, no other fabric is allowed to be imported. We shall, therefore, examine what is known as "artificial fur cloth". For that purpose, we may refer to some of the definitions of 'Fur', 'Fur-like Fabrics' and 'Fake Furs' etc. as given in Fairchild's Dictionary of Textiles (Sixth Edition) "fur" has been defined as follows :

"Fur 1. The fine, soft, dense hair covering of certain mammals. It generally consists of a double coating of hair, a layer of comparatively short, soft, curly, barbed hairs, (underfur) protected by longer, smoother, stiffer hairs (guardhair) which grow through the underfur. Fur is distinguished from hair which is longer, thinner and coarser. Fur fibre is generally spun a combination with other fibres, e.g., wool, cotton, rayon staple fibre. It is usually very soft, protrudes from the yarn and sometimes tends to shed.

2. Sometimes used for chennile pile".

The expression "Fur-like Fabrics" has been defined in the same Dictionary as follows :

"Fur-like Fabrics A broad term of woven and knit modacrylic and acrylic fabrics made in imitation of various furs, e.g., astrakhan, beaver, chincilla, mink. Generally made with a long pile which is given a special finishing treatment.

There is no expression "artificial fur cloth" in the said Dictionary. In fact, the expression "Fur-like Fabric" is the fabric which is also known as "artificial fur fabric". In the said Dictionary there is also an expression "Fake Furs" which has been defined as follows :

"Fake Furs Pile fabrics made of cotton, man-made fibres, and blends used in woven or knitted constructions to simulate animal fur....."

With the aforesaid definition, it has been further added, that "fur-like fabrics" is a preferable term than "fur fabric". Fur fabric is incorrect.

We may also refer to the definition of velveteen. Velveteen is defined in the said dictionary in the following terms :

"Velveteen An all-cotton fabric with a short, close filling pile cut to resemble velvet. It may be made with a plain or a twill back.

The suffix - een indicates that it is "velvet made of cotton" or "cotton velvet", but velveteen differs from true velvet, which originally was made only of silk, not only in the fiber used but also in the construction employed : true velvet is made with a warp pile and velveteen is made with a filling pile. Confusion arises because during World War II, when there was little demand for (silk) velvet, a cotton fabric was produced on velvet looms by the wire method. [See Velvet (2) for description of method]. This material is truly "cotton velvet" and is not the same as velveteen. Density of pile depends on the number of picks per inch, which ranges from about 175 to more than 600, with about 80 ends per inch. Filling yarns are combed, soft spun, usually made from long staple cotton. Single warp yarns are used in poorer grades and combed-ply warp yarns in better qualities. Velveteen is cut by hand or machine, generally dyed in the piece but also printed. A waxed finish may be given to the pile to increase luster. Velveteen differs from corduroy in the arrangement of the floats of the pile filling which are scattered as regularly as possible instead of being confined to one group of warp threads. The finished fabric has a smooth surface, covered with short cut pile not more than 1/8 inch (0.32 cm) in length. Uses : men's, women's and children's wear, draperies, bedspreads".

From the aforesaid definition it will appear that ordinarily velveteen is finished fabric covered with short cut pile not more than 1/8" (0.32 cm) in length. If the surface is longer it will become "plush" which again has been defined as "a warp pile fabric with cut pile surface longer than velvet pile and less closely woven".

Reference also may be made to Encyclopaedia of Textiles (3rd Edition) by Editors of American Fabric and Fashion Magazine. This Encyclopaedia defines "plush" as follows :

"PLUSH : Woollen or worsted pile cloth, the pile being one-eight of an inch or more in height. Plush has many well-known uses and is a exaggerated form of velvet. The term is from the French peluche. This, in turn, is taken from the Latin, pilus, which means hair. The cloth is compact and bristly. Made is silk, cotton, mohair, and combinations of fibers, as well as in wool or worsted. Cotton plush has a deeper pile effect than velour or velvet. Used in caps, coats, muffs, powder puffs, and upholstery. Rayon plush simulated the cotton type and has the same uses".

Thus "plush" has been defined as woollen or worsted pile cloth, the pile being one-eight of an inch in length or more in height. It has been described as an exaggerated form of velvet. From this definition it is clear that the difference between velvet and plush depend on the size of the pile. If it is less than 1/8" it is known as velvet and if it is more than that it is known as plush. In fact, plush, is an exaggerated form of velvet. But that cannot be said of "artificial fur cloth" which is fur like cloth made in imitation of various furs. The length of the pile is not the sole criteria. Even if, in a given case, the length of the pile is more than 1/8" that by itself may not be determinative of the fact as to whether the fabric in question artificial fur cloth or not. The real determining factor is whether the fabric in question is an imitation of animal fur or it has any resemblance to that. This view of ours also gets support from Brussels Technical Nomenclature (BTN) EN/AS 26-Jan. 1978, Section XI, Item 58.04 which deals with woven pile fabrics imitating furskins. According to it "the crux is that Fur Fabric or Artificial Fur Fabrics are deep pile or long pile fabric with woven or knitted constructions. They imitate some fur or the other". It also describes other types of pile fabrics. The description runs as follows :

"Different tyres of piles fabric having piles of various length are known by different names and have different uses. The pile fabric known as velvet and velveteen are generally below 3 mm. While an exact figure for pile height in the case of artificial fur cloth had not been given, it is clear that the pile should be long. The function of fur fabric be to give warmth and furry effect and furry effect and so a high or long pile is used ....."

Besides the aforesaid description of artificial fur cloth, it may also be observed that even in common parlance the word "artificial" means "any imitation, as a substitute, or stimulator". Hence, unless a fabric is an imitation of any fur, it cannot be termed as "artificial fur fabric". In the instant case there is nothing to show that the fabric in question had any resemblance with fur fabric or that it was an imitation of a fur fabric except that the description in the Bill of Entry and other papers was given as artificial fur fabric. That description, by itself, is not determinative of the actual classification of the goods.

10. Learned counsel for the respondents placed before us a sample of the fabric imported by the petitioners which has also been seen by the learned counsel for the petitioners. We have put the same on record. A look at the same also does not give an impression that it has anything to do with fur cloth or that it has any resemblance to fur cloth. It does not at all appear to be an imitation of fur cloth.

11. In that view of the matter, we are of the opinion that the fabric imported by the petitioners is not artificial fur cloth.

12. In view of the elaborate discussion made above in regard to the meaning of "artificial fur cloth" vis-a-vis the description of the goods in question imported by the petitioners, we do not think it necessary to discuss at length the various well-settled principles of the interpretation of items in the taxation statutes. A reference was made in the course of the arguments to the rule of common parlance interpretation or commercial parlance interpretation. Reliance was also placed on affidavit of a trader from Delhi which is annexed as Exhibit 'I' to the petition. This affidavit in our view does not in any way help the petitioners because it says that the artificial fur cloth is a commercial term and the same includes all pile fabrics like velvet, velveteen, etc. It is further stated that "in the market all the traders also buy and sell goods like velvet, velveteen, etc. as artificial fur cloth and even billing of the same is also done as artificial fur cloth". This affidavit, in our opinion, does not in any way help the petitioners. Evidently, the deponent in this affidavit has taken expressions 'velvet' and 'velveteen' and 'artificial fur cloth' as inter changeable which is not true. There is no other evidence to show that in the commercial parlance or trade parlance the product in question is known as "artificial fur cloth". We may in this connection refer to another well accepted principle of interpretation, that is "commonsense test" or "commonsense rule of interpretation". This was referred to and applied by the Supreme Court as far back as in 1960 in Tungabhadra Industries Ltd. v. Commercial Tax Officer (1960) 11 STC

827. It was again applied in Alladi Venkateshwarlu v. Government of Andhra Pradesh where also the Supreme Court

interpreted the item of a taxing statute in accordance with what was described as the 'commonsense' rule of interpretation. Applying this rule of interpretation also, it can be said that when the product in question is not an imitation of fur or has no resemblance to what is known as fur cloth, it cannot be termed as "artificial fur cloth". It is clearly a fabric which is commonly known as velvet and is put to various uses which are ordinarily different from those to which the fur cloth or artificial fur cloth is put.

13. A reference was also made before us by the learned counsel of the petitioners to a decision of the learned Single Judge of this Court in Writ Petition No. 149 of 1987 decided on 29th January 1987 [1987 (28) E.L.T. 255 (Bom.) where the Court came to a prima facie conclusion that the velvet cannot be excluded from the description of artificial fur cloth. The learned Single Judge was of the opinion that prima facie velvet cannot be excluded from the description of artificial fur cloth. Repelling the contention of the Revenue that in trade parlance velvet is understood as a separate commodity itself and is never understood as artificial fur cloth, it was observed : "This itself, in my opinion at this stage is not conclusive because the genus of artificial fur cloth can undoubtedly include the species of velvet". The leaned Judge in that case, proceeding on the assumption that the fabric imported by the petitioner was velvet, held that it cannot be excluded from the description of that class of the commodity known as artificial cloth. We have carefully considered the said decision. We, however, find it difficult agree with the reasoning and the conclusion of the learned Single Judge because in our opinion artificial fur cloth, does not include velvet or velveteen. As indicated above, in order to term any fabric as artificial fur cloth, one of the essential requirements is that it should be an imitation of some animal fur or it should look like or resemble animal fur. Unless that is so, it cannot be termed as artificial fur cloth. In view of the foregoing discussion we are of the opinion that the fabric imported by the petitioners is not artificial fur cloth and, as such, the respondents were justified in refusing the clearance of the said goods under the REP Licence.

14. The petitions are therefore dismissed.

15. The respondents shall be at liberty to adjudicate the claims of the petitioners and to realise the lawful duties in accordance with law.

16. Until the adjudication is over the Bank Guarantees furnished by the petitioners and the bonds executed shall all be kept alive.