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TMI Blog1989 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ynthetic Fibre. Hence the Department issued a demand notice for Rs. 9,88,869.30 P. reclassifying the goods under Heading 56.01/04-CTA. The Assistant Collector confirmed the demand for Rs. 8,70,103.17 P. In the impugned order, the Collector of Customs (A) has given his finding as imported goods being not wool waste on the basis of the test results of the imported goods in which wool content was found to be less than 20%. He has held that there is no evidence on record to show that the goods were wool waste and has also held that the appellants did not adduce evidence that the goods were wool waste. The Collector of Customs (A) has held that on test, the imported goods were found to be composed of wool fibres and synthetic fibres (both of cellulose and non-cellulose origin) and the percentage of wool being less than 50% and in the light of the provisions of Section Note 2.A of Section IX, the goods were classified under Heading No. 51.01/04-CTA. He has further held that the goods were a mixture of wool fibres and synthetic fibres, from the nature of the goods, the mixture cannot be homogeneous. The Collector has held that this is the reason for the differences in the percentages of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d this portion of the findings. The appellants have also challenged the question of classification of wools and also assessing the additional duty of customs at the rate other than that applicable under CET Item 68 at the relevant time. Their case is that the goods being mixture of fibres and yarn in entangled mass, could not attract additional duty of customs equivalent to that applicable to CET Item 18-A, 18-B, 18-C and 18-E and hence sought for classification of the goods under CET Item 68. Hence they have sought for setting aside the impugned order and have sought for accepting the test results of the Chief Chemist and ignore the test results which were conducted at the earlier stage. 4. Shri Harbans Singh, learned Advocate appearing for the appellants strongly argued the case on behalf of the appellants and submitted that the entire procedure followed by the lower authorities in taking the average of the test result is not a correct procedure and the burden of proof of the material being not wool waste, lies on the Department, which did not discharge and favourable test results cannot be ignored, but the benefit should go to the appellants. He has submitted that test result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers passed the appellants had imported consignment consisting of wool waste weighing 36,255.5 kg with Invoice No. 754, dated 26th May, 1977. The documents were filed for clearance on 11-9-1979. The samples had been drawn and on the basis of the test report, the Assistant Collector of Customs, Madras issued a Notice under Section 28(1) of the Act calling upon them to explain as to why the amount of Rs. 9,88,869.39 P. be not demanded from them as the test report revealed that the percentage of wool content in the consignment was found to be 35.2% and therefore, it was to be considered as synethic waste instead of wool waste. The appellants were not satisfied with the results of the said test hence, they sought for retest of the remnant samples to be done by the Chief Chemist. The Chief Chemist by his report reported the results of original and counter sample. The original sample had five parts and the result of wool content of each part was 40.84%, 41.70%, 49%, 43.28% and 53.4% respectively, average being 45.60%. The results of four parts of counter samples were furnished which were 41.19%, 48.97%, 60.02%, 51.8%, the average of these four parts worked out to be 50.55%. As in comparin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso to the first test report. The test report of the Chief Chemist clearly indicated that the majority of the parts revealed less than 50%. Only 3 parts out of 9 parts from both original and counter samples went in favour of the appellants. The appellants have not challenged the sampling method and have not sought for setting aside on that ground. We do not know from which consignment the favourable results have been obtained to give benefit to appellants. Since six parts from the Chief Chemist report of original and counter sample, has gone against the appellants and the original test result also has gone against the appellants, the entire test results cannot be set aside. The inference of the lower authorities that the reason for differences in the reports can be attributed to the heterogeneous nature of the mixture, cannot be overlooked. The Collector (A) in his findings has observed that when several equally authentic reports showed deviation from one another regarding percentages of different constituent materials of the mixture, the only reasonable and justifiable course to opt for was to take the average for purposes of determining the correct classification of the goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. We observe that the basic issue in the instant case is the correct classification for the purpose of customs duty and additional duty. 18. In this connection, it is required to be decided whether the consignment was that of wool wastes as declared. We observe in this connection that the samples were tested 3 times. This shows by itself that the appellants had not found the results of the first two tests satisfactory and had contested the same and the Deptt. allowed their request for the test two (three) times. In the circumstances, both the sides were bound by the result of the test by the Chief Chemist. 19. It is interesting to note in this connection that both the sides are interpreting the same test results (of Chief Chemist s test) and considering it ...... of their restrictive stand. 20. It is seen from the records that undisputedly the sample was in the form of heterogeneous mixture of fibres and yarns and pieces. The whole question, actually, boils down to determining as to what these results implies. 21. In this connection, it is observed that undisputedly, the material was in the form of a heterogeneous mixture of fibres and yarns in the nature of a waste mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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