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TMI Blog2008 (4) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... DIL ) on the ground that they had manufactured nylon bolting cloth falling under CET sub-heading 5911.20 attracting duty at a particular rate during the period in dispute, rejecting the assessees claim that they were manufacturing nylon fabrics falling under Heading 54.06 chargeable to nil rate of duty, and imposed penalty of equal amount on DIL and penalties of Rs. 25 lakhs each on the two directors of the assessee company. This order was challenged before the Tribunal which remitted the case to the Commissioner for re-determination of classification after cross-examination of the Chemist and of Shri Amrit Utsavlal Chhajed, expert in Textile Technology. The Tribunal held that the process of heat setting had to be undergone before nylon f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deformation by use. Certificate of Prof. V.B. Achwal, Head of Textile Chemistry Section, Department of Chemical Technology, Mumbai, dated 14-2-2987 reads as follows : For Proper use as a bolting cloth, synthetic filament woven fabric will need to have dimensional stability so that they are not deformed in use. To impart above properties, grey synthetic fabric will need some preprocessing particularly heat setting. As such the grey synthetic fabric in unprocessed stage cannot be considered as bolting fabric. Therefore, it is imperative to find out and establish where the appellants have manufactured Bolting Cloth , i.e. a fabric, that after weaving, has been heat set, or have manufactured nylon fabric without any heat setting whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the goods is to be established first and foremost it is significant for if its classification has to be determined. This identification cannot be established in the facts of this case, in absence of the evidence of Shri Chhajed and two Chemists as relied upon having been denied in cross examination. The order therefore cannot be upheld. Since whether the fabrics, after weaving, were heat set or not to render them as Bolting Cloth and had achieved a stage different from nylon fabrics cannot be established. This issue, which goes to the root of the classification, has to be re-determined. (e) The identification of the goods is to be distinguished from the step which follows namely, the inquiry whether one or more of the Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of classification, which are in nature of secondary evidence. When classification, as in this case has to be determined after ascertaining the fact by determining whether the item is Bolting Cloth under 5911.20, it is imperative to find out what is Bolting Cloth and whether the entity in question meets the specification of Bolting Cloth. Therefore the reports of Prof. V.B. Achwal, Head of Textile Chemistry Section has to be considered by the Commissioner for 5911.20, and applied, after coming to a positive finding whether heat setting has been done or not. Since that has not been done, the order cannot be upheld. The Supreme Court in the case of Bharat Forge and Press Industries Ltd. [1990 (45) E.L.T. 525] had held that the trade no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India, Institute of Textiles, and the Head of Textile Chemistry Section. Department of Chemical Technology, Mumbai also confirmed that bolting requires to be heat set so as to avoid deformation by use. In these circumstances it is necessary to establish whether the appellants have carried out the process of heat setting so as to find out whether the fabrics manufactured by them is bolting cloth as held by the Revenue. The cross-examination of the Chemists and Shri Chhajed should have been granted in order to bring out the above factual position and the denial of cross-examination in the light of the above, has brought about contravention of the principles of natural justice. 13. The case law relied upon by the learned DR, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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