2003 (6) TMI 303

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..... ellant was under Customs Tariff Heading 5515.91 whereas the appellant has claimed the classification under 5406.61. The appellant in their bill of entry has described the goods as polyester fabric. On testing of the same it was found a mixture of non-textured polyester multy-filament yarn and blended, stapled fibre yarn made of polyester stapled fibre and polyamide stapled fibre. As such the Revenue was of the view that the proper classification of the same fell under Heading 5515.91 for which they were issued a show cause notice. The appellants contention was that claiming of a classification does not amount to mis-representation and the sample was sent for testing purposes at their request only. They did not challenge the classification .....

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..... r 54. In these circumstances there was no justification for imposition of penalty or redemption fine. He relies upon the Tribunal s decision in the case of Jay Kay Exports v. CC, Port, Cal. (Order No. A-1019/KOL/2002, dated 11-2-2002) vide which the confiscation and the penalty, under same circumstances was set aside. 4. Shri T.K. Kar, ld. SDR appears for the Revenue and reiterates the reasoning of the Commissioner. 5. I find that the Tribunal s earlier decision in the case of Jay Kay Exports is fully applicable to the facts and circumstances of the present case. Para 5 of the said judgment is reproduced below :- 5. I have considered the submissions of both sides. I agree with the contention of the learned Advocate that this is not a .....

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..... n the impugned order and there is one line in paragraph 17 of the impugned order as under :- 17. The request of the importer for clearance of the goods under DFRC cannot be acceded to...... I order for expunging the said line from the impugned order. However, I make it clear that the Customs Authorities are at liberty to look into the aspect of clearance of the goods under D.F.R.C. afresh, if they so desire. Needless to say that before taking any decision on the said issue, the appellants should be given an opportunity to present their case. The appeal is thus allowed in above terms. In the instant case also identical situation is there. Accordingly, I set aside the order of the Commissioner on the above point with liberty to them .....

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