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TMI Blog2009 (7) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... in case the sealed sample is found to be not available, for retest, the adjudicating authority, in that event, shall allow cross-examination of the Chemical Examiner who had earlier submitted his report dt. 25-2-99, to the appellants and thereafter will decide the case afresh in accordance with law . 2. Test report of both testing authorities being in dispute, Tribunal directed the appellant to make the samples available to Revenue for retest afresh. On the basis of test report, the learned adjudicating authority was directed to decide the matter afresh. Alternatively in the event, sample is not found to be available for retest, it was directed that the learned adjudicating authority shall allow cross examination of the Chemical Examiner who had earlier submitted his report dated 25-2-99. On the basis of the outcome of either of the alternatives, the matter was directed to be decided afresh in accordance with law. The appellant went back to the ld. adjudicating authority for determination of the issue afresh before him. That authority passed an order on 29-11-05 granting opportunity of hearing to the appellant. 3. At the de novo adjudication stage, the appellant has the same gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of white, crimpent, parallel staple fibre without twist. The fibres are of spinable length and uniform diameter. It is free from fusel mass and extraneous matter. The sample may merit consideration as Cardeol Combed or otherwise processed for spinning. It is composed wholly of acrylic. 6.1 Ld. Counsel submits that since the test report was made available as annexure to the SCN dated 6-8-99, the appellant being dissatisfied with that, immediately informed the adjudicating authority by its letter dt. 6-9-99 appearing at page 31 of the paper book stating that the test report is not free from ambiguity and such report being questioned by the Appellant, the sample should meet the retest. The appellant also prayed for informing the fee payable for retest. But there was no reply at all from Revenue for a fair treatment to the appellant. The appellant, therefore, sent the goods for testing by an expert. His report is available at page 19 of the paper book and that reads as under: Sub. : Description of the sealed sample bearing No. 34, Central Excise, Chandigarh pertaining to bill of entry No. 112 of 18-1-99. TO WHOM IT MAY CONCERN I have my self drawn and examined the sealed samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sample for determining whether it is synthetic waste or not, the answer was that no such query was raised by the Customs authorities. Ld. Counsel points out that even the cross examination did not suggest to know whether the goods were acrylic waste or acrylic fibre. Thus Revenue failed to discharge its burden of proof. 6.4 Shri Arora throws light on the HSN classification criteria. He submits that fibre waste (soft waste) are of two types. One is long fibre obtained as waste and the other is short fibre obtained as waste. The manner of getting the waste decides the nature of waste. For this purpose he relies on the HSN classification criteria under heading 55.05 which reads as under: 55.05 - Waste (including noils, yarn waste and garneted stock) of Man-made fibers 5505.10 - Of synthetic fibres 5505.20 - OF artificial fibres This heading covers waste of man-made fibres(filaments and staple fibres - see the General Explanatory Note to Chapter 54) and includes : (1) Fibre wastes (soft waste), such as relatively long fibres obtained as waste during the formation and processing of filamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arora submits that when the Tribunal has given two options while remanding the matter, the question of valuation was still open to the appellant for challenge in de novo adjudication which is a question of law. When the appellant s claim was that its imported goods are rightly classifiable under acrylic waste category, there is no need for arbitrary valuation of the goods so imported. 7. Ld. DR Shri Vijay Kumar defends Revenue submitting that the de novo adjudication order on all counts establishes liability of the appellant. According to revenue, there was clearance of the goods under bond. When the goods were under the bond that was subject to test of applicability of the Notification No. 81/97-Cus., dated 24-10-97 for imposition of anti-dumping duty. 7.1 Ld. DR further submits that there was no difficulty for revenue to allow a retest. But when the samples brought by the appellant was found to be tempered and its seals broken, that created doubt for revenue. Therefore, no reliance was possible to be placed on that packet of goods. Consequently retest was not ordered. But following the second alternate suggested by Tribunal in its order reported as aforesaid, the appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that this information is available in the record. When the record was not in a possession with the witness this answer cannot go in favour of the revenue in absence of any verification done by Revenue from laboratory record. The witness in respect of length of the sample, provided description thereof. But absence of the record with her, does not permit to presume that the description given by the witness is correct. When the witness was examined on 6-10-05, revenue should have taken steps to call for the records of laboratory and examined the deposition of the witness properly. When we look into the question about the nature and character of the goods, we find from the answer that question relating to this aspect was not asked to the laboratory for a reply. This clearly throws light that Revenue had no anxiety to find out whether the acrylic imported was waste or not. 10. Shri Arora relies on page No. 28 which showed dispatch of the sample for testing. We have already extracted what was the question before the laboratory. The question does not throw light to show whether revenue had any anxiety to find out that the goods were acrylic waste or fibre. Apart from this, even thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the case of Beeta Exports (supra). There is no dispute that the Tribunal has held that the leviability of anti-dumping duty is subject to appropriate classification of goods. This order supports our view which we have taken in this case herein after. 13. We have gone through the notification submitted by the ld. DR on the anti-dumping duty. We have no disagreement with revenue that anti-dumping duty was leviable on acrylic fibre. But to direct such levy, the goods should be proved to be acrylic fibre. In this case, Revenue failed to prove its case for claimed classification. Burden of proof was not discharged. We have noticed aforesaid that test report of CRCL did not prove the impugned goods to be acrylic. Therefore, it is not possible to direct imposition of anti dumping duty when the goods itself remained in doubt for its identification and classification. Levy of anti-dumping duty is accordingly unwarranted in this case and the classification claimed by Appellant is upheld. 14. So far as the valuation is concerned when revenue could not come out with full proof and without any evidence to suggest that the goods should be classified under heading 5506.30, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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