2024 (3) TMI 1186 - AT - Customs

Classification of exported goods - Abrasive Mesh - whether the goods exported are classifiable under CTH 2513 20 90 as Abrasive Mesh as declared by the Appellant or under CTH 2513 20 30 as Natural Garnet as assessed by the Department? - HELD THAT - The Learned Commissioner (Appeals) while deciding the classification of the disputed goods under heading 2513 20 30 has not given any finding as to why the Appellant was not given an opportunity to cross examine the Chemical Examiner so as to determine what are the properties of the goods of the Appellant that correspond to the said classification nor ascertained reasons as to why the communications of M/s. IREL as requested by the Appellant were not shared with them. It is noted that, the properties of the goods are technical in nature and vital to be determined before ensuring appropriate classification whereas the findings of the Commissioner (Appeals) are silent on this vital aspect of the factual circumstances. This Tribunal draws support from the case of SWADESHI POLYTEX LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, MEERUT 2000 (7) TMI 85 - SC ORDER ,wherein it was held that if the Adjudicating Authority intends to rely upon the statement of any such persons, the Adjudicating Authority should give an opportunity of cross examination to the appellant . The lower authorities have not considered the submissions made by the Appellants in order to properly come to the conclusion for correct classification of goods in question - the matter needs to be remanded for re-consideration back to the adjudicating authority - Appeal allowed by way of remand.

Summary

Issues: Classification of goods under CTH 2513 20 90 as 'Abrasive Mesh' by the Appellant vs. under CTH 2513 20 30 as 'Natural Garnet' by the Department.

The Appellant, M/s Kiran Minerals, filed a shipping bill for goods declared as 'Abrasive Mesh' under CTH 2513 20 90, while the Department classified it as 'Natural Garnet' under CTH 2513 20 30, restricted for export. The Commissioner (Appeals) upheld the reclassification, leading to the present Appeals.

Appellant's Argument:
The Appellant's representative argued that the lower authorities erred in classifying the goods as 'Natural Garnet.' He contended that the properties of almandine, as per available literature, do not match the characteristics of the Appellant's goods. The Chemical Examiner relied solely on basic almandine properties for classification, ignoring the Appellant's request for retesting the sample. The Appellant was not given a chance to cross-examine the Chemical Examiner, violating principles of natural justice.

Department's Response:
The Department's representative reiterated the findings of the impugned orders, supporting the classification of the goods as 'Natural Garnet.'

Tribunal's Analysis:
The Tribunal examined whether the goods should be classified as 'Abrasive Mesh' or 'Natural Garnet.' It noted that the Commissioner (Appeals) failed to provide reasons for denying the Appellant the opportunity to cross-examine the Chemical Examiner or access communications from M/s. IREL. The technical properties of the goods are crucial for accurate classification, which the Commissioner's findings did not address. Citing the case of Swadeshi Polytex Ltd. v. CCE, Meerut, the Tribunal emphasized the importance of allowing cross-examination if relying on statements from individuals.

Judgment:
Considering the above observations, the Tribunal found that the lower authorities did not adequately consider the Appellant's submissions for correct classification. Therefore, the matter was remanded for reconsideration to the adjudicating authority. No final findings were made, and the issues remain open. The impugned orders were set aside, and the Appeals were allowed for remand.