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TMI Blog2010 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. [Order per : M. Veeraiyan, Member (T)]. This is an appeal against the order of the Commissioner No. 09/Cus/Commissioner/Adj/2006-07 dated 22-2-2007. The matter is before the Tribunal for the second time, having been remanded for de novo consideration vide Final Order No. 179/06-Cus., and Stay Order No. 182/06-Cus., dated 9-6-06 [2006 (203) E.L.T. 272 (T)]. 2. Heard both sides extensively. 3. The relevant facts, are as follows :- (a) The appellants imported 4 consignments of plain dyed fabrics of Chinese origin. They claimed the same as fabric containing 85% or more by weight of non-textured polyester filament classifiable under Heading 5407 61 90. The clearance was made on provisional basis pending test results. (b) Thereafter, the Department has drawn samples and sent them for testing to CRCL, Textile Committee, (Ministry of Textile, Government of India) and to Government Central Textile Institute (GCTI). (c) As per report of CRCL dated 19-8-2003, the samples were composed wholly of textile multi filament yarn polyester. The test report suggested that end-use of samples should be ascertained by executive check. For ascertaining whether the samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as 100% non-texturised yarn. Under these circumstances, the retesting of the sample suo motu by Textile Committee was not at all warranted. It appears from the letter signed by Director (Laboratories) of Textile Committee that certain discussions have been held with the Commissioner of Customs and that a team of Textile Committee officials have visited some units in Gujarat and claimed to have discovered new developments in textile technology. Based on that, the earlier report given by the Assistant Director was sought to be cancelled and the test report of a lower official has been forwarded by the Director (Laboratories). The first report by Textile Committee and the second report are diametrically opposite. The cross-examination of Smt. Anita Hazra, Quality Assurance Officer clearly revealed that there was no new parameters and there was no change in the parameters for testing . Under these circumstances, the second report deserves to be ignored. Though the test was not personally done by Quality Assurance Officer but only by technicians, no internal documents prepared by said technician were produced. Retest has been done even without the request for retesting from Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that he has applied his mind and endorsed the second report. 5.4 As regards the report from Kanpur based GCTL, the institute is basically a training institute and it has been clarified that the laboratory was not equipped to conduct the modern testing following national and international method. They have merely followed the surgical method which is conventional method to ascertain whether the fabric was made out of texturised yarn or non-texturised yarn. The Kanpur report should be ignored. 5.5 As the report of CRCL is clearly in favour of the Department, the first report of Textile Committee having been cancelled and the second report of Textile Committee being favourable to the Department, the Kanpur report being from an ill-equipped institute, the Commissioner has correctly come to the conclusion on the classification by adopting the report of CRCL and the second report of the Textile Committee. 5.6 Taking us through the cross-examinations of Venkitachalam, Assistant Director and that Smt. Anita Hazra, he submits that the first report of Textile Committee went on mis-conception that mingled and tangled yarn was not considered as texturised yarn as it was felt that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-heading Explanatory Notes. Sub-headings 5402.31 to 5402.39 Textured yarns are yarns that have been altered by a mechanical or physical process (e.g. twisting untwisting, false-twisting, compression, ruffling, heat-setting or a combination of several of these processes), which results in individual fibres being set with introduced curls, crimps, loops etc. These distortions may be partially or completely straightened by a stretching force but resume the shape into which they have been set upon being released. Textured yarns are characterised by having either a high bulk or a very high extensibility. The high elasticity of both types makes them especially suitable for use in the manufacture of stretch garments (e.g. tights, hose, underwear) while the high bulk yarns give fabrics softness and warmth of touch. Textured yarns may be distinguished from non-textured (flat) filament yarns by the presence of special twist characteristics, small loops or reduced parallel orientation of the filaments in the yarn. 6.2 From a close reading of the same, it is noticed that the said notes contain distinguishing features between textured yarn or non-textured yarn. We do not agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner also refers to exchange of correspondence between the Chief Commissioner of Customs and the Member Secretary of Textile Committee. Apparently, the said communication has not been made available to the appellants. The claim by the learned JT. CDR that the correspondence was innocuous and was matters of administration is not appealing to us. If that be the case, the need for reference to the same in the order of the Commissioner is not appreciated. This is also one reason which has a bearing on the credibility of the second report. 8.2 The second report has been prepared after test by the technicians of Textile Committee and has been endorsed by Quality Assurance Officer. She, in her cross-examination, clearly submitted that she did not do the test personally but the same was being done by technicians. When the first report is to be discarded, it has not been shown that the second test was done by any other of higher rank than the one who conducted on first occasion or by team of officers. The endorsement of the Quality Assurance Officer, the Director (Laboratory) of the second report cannot automatically invalidate the first report. Further, it is noticed that the first repo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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