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TMI Blog1988 (2) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... amination of 6 bales, 59.11% of the goods were found to be serviceable yarn in hanks which could not be considered as wool waste because the yarn could be used straightway. Accordingly, this quantity of yarn, as per the Show Cause Notice, was not classifiable as waste but as normal serviceable yarn attracting duty at the rate of 100% plus 25% plus C.V.D. at Rs. 25/- per Kg. Wool waste attracted duty at the rate of only 5%. It was pointed out in the Show Cause Notice that there had been mis-declaration in regard to this import resulting in loss of duty, apart from the fact that the goods were not covered by the Import Licence. 4. We have heard Shri L.U. Balani, advocate for the appellants and Smt. Dolly Saxena, SDR for the department. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to international standards), the subject yarn could be straightway used in the manufacture of carpets and mufflers etc. 7. Shri Balani stated that the departments were requested to give the full text of the opinion(s) obtained, but at the time of the hearing, they were informed by the Deputy Collector of Customs that the evidence of the indenting agents and the Australian experts will not be relied upon by the department in coming to the conclusion in the matter. However, it is now pointed out before us that apart from the evidence of indenting agents and Australian experts on which the department initially seemed to rely, there was no indication of any other evidence to support the charge that the goods imported were serviceable yarn. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding and usage - 1983 E.L.T. 385. (CEGAT). It is submitted that appellants had requested that the consignment as a whole should be shown to an expert for opinion, but this request was rejected. 12. It is also urged that the OCCN could have persuasive value in deciding the classification, but no final view could be taken on the basis of CCCN. It is added that the Explanatory Notes of the CCCN are not specifically covering all varieties of yarn waste, since the definition uses the word such as, etc. . 13. It is submitted that the appellate authority has erred in holding that the impugned goods, being in hanks, are not covered by Heading 53.03 of the CCCN. It is submitted that nowhere do the Explanatory Notes of the CCCN state that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and the submissions made by both sides. We observe that the goods are invoiced as wool waste (coloured wool thread waste). This is how the goods were also described in the Bill of Entry. In the circumstances, as has been held in numerous decisions of this Tribunal, if the department is refusing to accept the description and classification of the goods, as evidenced by the invoice and the Bill of Entry, then the onus of proving that the goods are different, is on the department. 19. It is true that the importer, in claiming a particular classification can always furnish the department with any additional evidence that he might have to support his case. But if the classification claimed is not acceptable to the department, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon, what remained for the department to fall back upon, to sustain the charge against the appellants? Nothing at all, it seems to us. 23. We do not agree that hank yarn cannot go waste or merely because such wasted yarn happens to be in hank form, therefore, it would merit classification as good yarn or normal serviceable yarn. The fact that the appellants are licenced for weaving is no evidence against them. Nor, we feel, is it essential for them to furnish evidence that such waste is to be subjected to garnetting. 24. All in all, this is one of those cases in which the department has denied the classification claimed by the importer, on the basis of a charge which remains entirely unsubstantiated. Appeal allowed. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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