2018 (4) TMI 490 - AT - Customs

Classification of imported goods - synthetic polyester fabrics - goods were classified under Heading 5407.61 as woven fabrics containing 85% or more by weight of non texturised polyester filament year - classification changed based on test reports - As per the test reports of the Joint Director, New Custom House Laboratory, it was observed that the fabrics in question were containing 85% or more polyester yarn, composed of texturised filament yarn and are properly classifiable under Chapter Heading 54077200 and attracts the higher rate of duty. Held that - Admittedly, the first report of the Textile Committee was in favor of the assessee. It is also seen that there were number of importers identically situate and the dispute arose in the case of number of them. The matter was taken up at the Association level and it was requested that a committee be formed to test the presence of texturised yarn in the fabrics. It is only thereafter a committee was formed and methodology was laid down for the purpose of testing the presence of the texturised yarn, the result of such reports went against the assessee. An identical matter came before the Tribunal in one of the other importers identically placed and was dealt with the Tribunal in the case of Shri Lakshmi Cotsyn Ltd. vs. CCE, Kanpur 2010 (9) TMI 386 - CESTAT, NEW DELHI in the wake of identical facts and circumstances, where the first report of the Textile Committee was in favour of the assessee and the subsequent retest by the Chief Chemist was against them. It was held in that case that CRCL is in favour of the Department, initial report of Textile Committee and the report of GCTL, Kanpur were in favour of the party, the benefit of doubt naturally has to be given to the assessee especially when the test clarified to be subjective. Appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Classification of imported synthetic polyester fabrics.
2. Validity of test reports from different authorities.
3. Adherence to principles of natural justice.
4. Scope of Less Charge Demand Notices.
5. Credibility of subsequent retesting.

Detailed Analysis:

1. Classification of Imported Synthetic Polyester Fabrics:
The respondent imported synthetic polyester fabrics classified under Heading 5407.61, attracting a basic customs duty of 25% ad valorem. Initial assessments by the Textile Committee confirmed the classification. However, subsequent intelligence suggested misdeclaration, leading to retesting by the Joint Director, New Custom House Laboratory, which classified the fabrics under Heading 54077200, attracting a higher duty.

2. Validity of Test Reports from Different Authorities:
The initial test by the Textile Committee indicated the fabrics were made from non-texturized polyester filament yarn. The remnant samples were later retested by the Joint Director, New Custom House Laboratory, which concluded the fabrics were made from texturized yarn. The Commissioner (Appeals) noted that the test for determining textured or non-textured yarn involves visual examination without chemical tests. The methodology and results of the retesting were not transparently disclosed, leading to doubts about their credibility.

3. Adherence to Principles of Natural Justice:
The respondent argued that the order violated principles of natural justice, as several documents and test reports relied upon were neither disclosed in the Demand Notice nor made available to them. The Commissioner (Appeals) upheld this contention, emphasizing the need for transparency and the right to a fair hearing.

4. Scope of Less Charge Demand Notices:
The respondent contended that the order was beyond the scope of the Less Charge Demand Notices, as it confirmed interest under Section 28AB without any proposal for the same in the Demand Notices. The Commissioner (Appeals) found merit in this argument, noting that the Demand Notices did not include a proposal for interest, making the confirmation of interest unjustified.

5. Credibility of Subsequent Retesting:
The Commissioner (Appeals) observed that the second test reports did not account for various mechanical, physical, and chemical processes that could distort the yarn's appearance. The Tribunal in similar cases, such as Raja Imports and Exports vs. Collector of Customs, Bombay, held that the Textile Committee's initial reports should not be disregarded without substantial evidence. The Tribunal also noted that if there are two contradictory reports, the one favoring the assessee should be adopted.

Conclusion:
The Tribunal upheld the Commissioner (Appeals) decision, emphasizing that the initial Textile Committee report was in favor of the assessee and that subsequent retesting lacked transparency and credibility. The Tribunal reiterated that in cases of doubt, the benefit should be extended to the assessee, rejecting the Revenue's appeal.

Pronouncement:
The judgment was pronounced in court on 20.3.2018.