2011 (10) TMI 349 - HC - Customs

Classification - imported fabrics are flax or Ramie fabric - assessee requested for retesting of goods - Held That - When the first test is done by Textile Committee respondents are directed send to retained sample to the Textile Committee, directed to communicate the results as expeditiously as possible. Writ disposed.

Issues Involved:
1. Legitimacy of the denial for retesting the imported consignment.
2. Applicability of the Customs Appraising Manual regarding retesting.
3. Right of appeal against the test results.
4. Appropriate laboratory for conducting the retest.

Detailed Analysis:

1. Legitimacy of the Denial for Retesting the Imported Consignment:
The petitioner sought a writ of certiorarified mandamus to quash the letter dated 19.9.2011 issued by the third respondent, which denied retesting of the imported consignment. The consignment was initially tested by the Textile Committee, Chennai, which classified the material as 100% Linen (Flax) Woven dyed fabric. The petitioner, however, had a conflicting test report from the Textile Committee, New Delhi, classifying the material as 100% Remi Woven dyed fabric. The petitioner argued that the denial of retesting was unjustified, particularly when the Central Board of Excise and Customs (CBEC) guidelines generally favor retesting upon request.

2. Applicability of the Customs Appraising Manual Regarding Retesting:
The Customs Appraising Manual, particularly Rule 19, was cited by the petitioner. It states that when a party is dissatisfied with the original test results, a request for retest should normally be complied with. The court noted that the CBEC's view supports retesting under such circumstances. The court found that the respondents' refusal to retest based on the initial test being conducted by a specialized agency was not a valid ground to deny the petitioner's request.

3. Right of Appeal Against the Test Results:
The respondents argued that the petitioner had a right of appeal against the test results and thus the writ petition should be dismissed. However, the court clarified that the appealable order is the classification and duty rate adopted based on the test results, not the test report itself. The court emphasized that the test report is an opinion used for adjudication and does not constitute an appealable order. Therefore, the petitioner's request for retesting was valid and should not be dismissed on the grounds of having an appeal remedy.

4. Appropriate Laboratory for Conducting the Retest:
The petitioner requested retesting at either the Central Revenue Control Laboratory, New Delhi, the Textile Committee, Mumbai, or the Textile Committee, Delhi. The respondents suggested that the sample should not be sent to Delhi but to the Textile Committee, Chennai. The court, considering the need for an independent second opinion, directed that the retest be conducted by the Textile Committee, Mumbai. This decision was made to ensure impartiality and to provide a second opinion distinct from the initial test conducted by the Textile Committee, Chennai.

Conclusion:
The court quashed the order dated 19.9.2011 and directed the respondents to send the retained sample to the Textile Committee, Mumbai for retesting. The Textile Committee, Mumbai was instructed to communicate the results to both the petitioner and the respondents expeditiously. The petitioner was given the liberty to pursue further remedies based on the retest results. The writ petition was disposed of with no costs.

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