Rule 96-MMM of the Central Excise Rules, 1944, recognizes roller locker machines as powerlooms, influencing the classification of goods manufactured by such machines.

ORDER

1. In this case the challenge is to a show-cause notice issued on 30- 7-1986. In the show-cause notice the allegation was :

"Whereas it further appears that the Round Mosquito Nettings have been woven by the assessee on the roller locker machine and not on looms and, therefore, the said fabrics do not appear to be classifiable under Heading No. 52.06. The said Round Mosquito Nettings manufactured by the assessee appears to be appropriately classifiable under Sub- Heading No. 5804.90 as Heading No. 58.04 covers tulles and other net fabrics."

2. The appellants submitted that roller locker machines were powerlooms and the correct classification was under Heading 52.06. That the netting was manufactured by roller locker machines which were powerlooms. Therefore, the show-cause notice was misconceived.

3. The contention of the appellant was rejected by the Excise authority as well as the Tribunal.

4. Mr Dushyant Dave, learned Senior Counsel, has drawn our attention to Rule 96-MMM of the Central Excise Rules, 1944, which is as under :

"96-MMM. Reckoning of roller locker mach ines. -Where roller locker machines are installed, either exclusively or in addition to any other type of powerloom, every metre of the width of such machine shall be reckoned as one powerloom and where the total width is in excess of whole metre, any fraction less than half a metre shall be ignored and any fraction of half a metre or more shall be increased to one whole metre."

5. Mr Dave has contended that it has been statutorily recognised that roller locker machines have to be reckoned as powerlooms. The contention of Mr Dave is that in view of this rule, there is no scope for any argument that roller locker machines are not powerlooms. The show-cause notice was misconceived.

6. We are of the view that the arguments of Mr Dave are of substance and must be upheld. As a matter of fact in another case before us CCE v. Ahmedabad Mfg. and Calico Ptg. Co. Ltd. [CA No. 1709 of 1990] Rule 96-MMM was examined by another Bench of the Tribunal. The Tribunal decided the case in favour of the assessee relying upon Rule 96-MMM.

7. In that view of the matter this Civil Appeal No. 3889 of 1990 is allowed and Civil Appeal No. 1709 of 1990 is dismissed. No order as to costs.