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TMI Blog2007 (6) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate appearing for the applicant submits that they have been from the beginning challenging the tests conducted by the CRCL and were requesting the authorities to send the sample for testing to IIT or NITARA. It is the submission of the advocate that the tests conducted by the CRCL is not based on any standard methods but only on visual inspection. He submits that the revenue in another case of a different importer has sent the sample of identical imports for analysis to IIT and given benefit to that assessee. He submits that they on their own got the customs sealed sample analysed from IIT and the test results are in variance with the test report of the CRCL. 4. The learned DR on the other hand submits that the Joint Director of the CRCL has categorically stated that the repeated tests on the sample had indicated that the imported goods were of textured multifilament yarn and has been correctly classified. It is his further submission that the visual inspection of the imported goods is the correct method as has been confirmed by the Joint Director of the CRCL. It is his submission that the test report of CRCL cannot be disregarded, as they are the experts in testing the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Chemical Examiner was conducted by Dr. Badri Prasad, Consultant on 7-4-2006 and the relevant portion is reproduced as under : (Q) Have you done initial testing of the samples relating to Bill of Entry Nos. 2597 and 2905? (A) I had supervised the testing. (Q) What method of testing for determination of texturisation has been used? (A) Visual examination. (Q) Have you arrived at the conclusion given in your test report that samples under reference are crimped i.e. wavy nature? (A) Yarns have clear crimps and have permanent waves in nature. (Q) How could you determine that crimp s wavy nature of permanent or temporary? (A) On releasing the stretch the crimps would reappear indicating the crimps are of permanent nature. (Q) The yarn has been separated manually by you from the fabric. (A) No. I was not alone but there were others also who separated the yarn. (Q) In the fabric yarn undergoes some sort of wavy or crimpy character due to weaving and during finishing of the fabric. Do you agree with this. (A) No. (Q) I will invite your attention to ASTM designation D: 3883-99 wherein it is mentioned that yarn removed fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epends on the type of fabric required. This is the reason that till date no standard writing institution all over the globe have published and test procedure for texturised or non-texturised fabric whereas for in house quality control of the material which manufacturer produces, various tests are required like bulkiness of the textured fabrics crimp percentage which are already well documented procedure in ASTM IS and may be in other specification of other institutions etc. and these tests has no relation with that required to be performed in the present case. (Q) Your answer giving description of the properties and characteristics of textured yarns is not based on any scientific and standard test methods for finding out orientation of texturisation of polyester yarn but you are repeating all the time the description of the properties and characteristics of textured yarn but not the method followed by you in your laboratory for arriving at the conclusion that the samples separated from the fabric in question are textured or non-textured. (A) I do not agree with the view of the leaned Consultant as I have already mentioned that there is no standard text procedure to establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment has till now requisitioned my finding, therefore, whatever he has concluded is incorrect. Further there is no standard scientific procedure published to differentiate textured yarns from non-textured filament yarns. 8. It is also curious to note that there is difference of opinion as regards the existence of the standard test method to ascertain whether the fabric is made out of textured yarn or not. The person who is conducting the tests deposes that there are standards mentioned in ASTM while the Joint Director deposes that there are no standard methods prescribed, but both agree to the fact that the tests carried out on the sample of the applicant is done only by visual inspection. It would indicate that, though there being a standard testing method available for testing the textured nature of the yarn/fabric, it was not adhered to test the samples of the applicant and there could be a doubt about the report of CRCL. As against this the applicant forwarded the customs sealed samples to IIT. The sample was tested by IIT and the report is as under; TEST REPORT Dated 27 March, 2006 1. Senders name and complete : Expotec India Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried out by the IIT, indicate the standard methods having been used. 10. Hon ble Supreme Court in the case of Quinn India Ltd. [2006 (198) E.L.T. 326 (S.C.)] has held that: Test Report of the Chemical Examiner and Chief Chemist of the Revenue unless demonstrated to be erroneous, cannot be lightly brushed aside. 11. In this case the applicant has brought on record that the tests conducted at CRCL, is flawed due to the fact that the same were conducted by only visual inspection without applying standard testing methods. The law as laid down by the Hon ble Supreme Court in the case of Quinn India Ltd., (supra) would apply in this case and the test report of the CRCL is to be disregarded for arriving at the conclusion that the fabric imported by the applicant is made up of textured filament yarn. { 12. The adjudicating authority while not accepting the test report of IIT has held as under : I also find that without agreeing with the test reports of the CRCL, the notice has been insisting for re-testing at IIT/any other agency. A question arises as to what should be done in a situation where the initial testing has been done by the Chemical Laboratory of the Customs Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly contradictory test result from IIT, that too after testing the sample by standard testing methods. To contradict the test report of IIT the revenue has not produced any other test report of another technical expert. The Hon ble High Court of Gujarat in this regard has laid down the law in the case of Inter Continental (India) v. Union of India as reported at 2003 (154) E.L.T. 37 (Guj.). We may read the relevant portion: Therefore, once the competent authority who is technically qualified to tender opinion in relation to the technical standards prescribed under the provisions of Food Adulteration Act and Rules thereunder has tendered his opinion, it would not be open to any one to take a contrary stand, unless and until such technical opinion is displaced by specific and cogent evidence in the form of another technical opinion. Division Bench of the Tribunal in the case of Balaji Designs v. Commissioner of Customs, Tuticorin as reported at 2005 (192) E.L.T. 199 has also held as under: We are prima facie of the view that the rejection of the technical opinion merely because it had been produced by the respondent was not right. If the reports lacked any material par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exigency on the part of the concerned importer (as the CRCL testing was taking more time) and subsequently cleared on the basis of reports received from IIT on the very next day. However, in the present proceedings, the consignments have already been provisionally released after execution of test bond by the noticee party. 17. It is a well-settled law that in taxation matters there has to be a certainty, equality and finality. If an assessee is given the benefit of the test results of IIT, the same ratio should apply to the current applicant, on the face of the fact, that, in that case the revenue has chosen not to file an appeal against the findings. If that be so, then the revenue cannot argue against the accepted position in another case. The Hon ble Supreme Court has now settled this proposition in the case of Jayaswals Neco Ltd. v. CCE, Nagpur as reported at 2006 (195) E.L.T. 142. The relevant portion reads as under: Since the point involved in the present case is identical to the point decided in the Hindustan Gas Industries case (supra) and the department having accepted the principle laid therein to the effect that the inserts did not require any precision machinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 10 of the impugned order that the Department allowed testing for the third time by CRCL at the request of the appellant without even making any reference to previous testing by CRCL in order to avoid any kind of prejudice on their part (Test memo dated 19-12-2005 refers). 26. The test report dated 20-1-2006 in respect of two samples under the two Bills of Entry contained the following statement made by CRCL : The sample is a cut-piece of black coloured woven fabric, composed wholly of textured multifilament yarns of polyester. 27. At the request of the appellant during the proceedings, the cross-examination of Chemical Examiner was allowed on 16-2-2006. In the meanwhile, the appellant requested for sending the sample to another independent Lab, and the same was rejected by the Department. 28. The record of cross-examination of the Assistant Chemical Examiner, reveals that the Chemist took out yarn and tested for texturisation whether it had crimps made of permanent nature along with the length of the yarn and, whether it satisfied the stretch test. He had also confirmed that the sample was checked up visually as well as through microscope and that no chemical test was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of opinion of some private persons obtained by the appellant. (Emphasis Supplied) 31. Further, while entertaining very similar grounds in Stay Application No. Customs 2556/06 (in Customs Appeal No. C/558/96) in M/s. Royal Trading Co. v. CC, Faridabad, on 13-10-2006, the very Bench had ordered pre-deposit for the purpose of hearing that appeal. Relying upon the ratio laid down by the Hon ble Supreme Court in Reliance Cellulose Products Ltd. v. CCE, Hyderabad, supra, and following the convention of this Tribunal, while dealing with identical facts/situation, I find that the appellant has not made out a case in their favour for total waiver of pre-deposit of duty and penalty. It is, therefore, directed that the appellant make a pre-deposit of 50% (fifty per cent) of the amount demanded under the impugned order within eight weeks from the date of receipt of the interim order, failing which the appeal shall stand dismissed. On depositing the said amount, the remaining amount of duty/penalty shall be waived during the pendency of the appeal. The application stands disposed of accordingly. Sd/- (Dr. T.V. Sairam) Member (T) DIFFERENCE OF ..... X X X X Extracts X X X X X X X X Extracts X X X X
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