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TMI Blog2000 (8) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... g clearance of the 72 cartons against three Transferable Advance Licences. For the balance 88 cartons, a prayer was made for warehousing under Section 49 of the Customs Act, 1962 pending production of the licences. On the basis of the said bill of entry, Order for allowing part clearance of the goods was passed and the balance 88 cartons were allowed to be warehoused under Section 49 of the Customs Act, 1962. The appellants due to financial crisis and labour problem could not clear the goods, which were seized subsequently by the Dock Intelligence Unit (Preventive), Calcutta on 14-3-1997. Thereafter, investigations were conducted and a show cause notice was issued on 20-3-1997 alleging that the goods have been mis-declared inasmuch as the same were Polyester based Nylon Cloth Fabric instead of Velvet. 1.2 After due adjudication, the impugned Order was passed by the Commissioner resulting in confiscation of the goods and imposition of personal penalty. The said Order is impugned before us. 2. Arguing on the appeal, Shri F.A. Razack, learned Advocate assailed the Order of the Commissioner on the violation of principles of natural justice. However, he clarifies that he is not pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old goods such as curtains and wearing apparels. 2.6 In the book - Textiles 6th edition by Norma Hollen, under Chapter 24 captioned Pile Fabrics from page 217 to page 224 - three varieties of Velvets are mentioned. That Velvet can be made by warp-Pile technic (page 219), Velvet can also made by tufting method (page 222) and it can also be made by flocking method (page 223). At page 224 of the same book, use of Flock Fabric is given. The largest use is in household items, the second largest use is in Children s clothing and the third largest use is for making women s cloth. Thus, it may be crystal clear that when one talked of Velvet fabric that meant Fabric made by (i) warp-Pile method; (ii) Tufting process; (iii) Flocking method. 2.7 Learned Advocate also submits that the learned Adjudicator failed to consider that - (a) Flock are very short fibers attached to the surface of a fabric by an adhesive to make a pile like design or fabric. Flocking was used as a technique for wall decoration in the 25th/24th century. Short silk fibers were applied to freshly painted walls by a bellows. Flock can be applied to many base materials - cloth, foam, wood, metal, and concrete or it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is acrylic emulsion. In the premises, there cannot be any manner of doubt that the goods in question are in fact velvet fabrics and as such, the purported findings to the contrary arrived at by the learned Adjudicator is liable to be set aside by the learned Members of the Appellate Tribunal. 2.10 Learned Advocate also submits that the learned Adjudicator also failed to consider that the Calcutta Customs under the Commissioner of Customs, Calcutta who is dealing with imports of similar and such consignments are clearing similar consignment as Velvet after thorough and protracted investigation in the matter and also after adjudication in respect of some of the goods. The Commissioner of Customs, Calcutta had held in an order passed by him relating to import of similar consignment of Velvet that the goods in question are Velvet Fabric although the technical characteristics of the same is Polyester being the base and the nylon being the flocking material. In this context, it is pertinent to state that another eminent expert in India, namely SGS India Limited, have opined after analysing and testing of similar velvet fabric that the common name of the fabric is Flocked Fabric . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical books on textiles as also to the discussion and finding portion of the said Order. After going through the said Order, we find that the Commissioner in that case has observed that the issue cannot be decided by the dictionary-meaning and it is necessary to see what certain types of goods, particular in the category of fabrics are known in the trade parlance. While importing and exporting the goods, the persons concerned are not supposed to refer to various dictionaries where the definitions, though may be useful, cannot be considered to be conclusive of the matter. Accordingly, he has observed that the most important test in this connection, is how the goods are taken in the trade and their uses and not merely what they technically may be in a particular dictionary. The Commissioner in that Order, further, observed as under :- Examined from the trade parlance test, there is therefore no doubt that imported goods are nothing but velvet fabrics even though these might have been made by the flocking process and not by the traditional and conventional tufting process. 4.1 We find that apart from the above finding of the adjudicating authority as regards the trade parlance on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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