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TMI Blog2016 (3) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... -examination of expert may not cause any prejudice and in such case not allowing cross-examination would not vitiate the proceedings. However, in the present case it is eminently arguable that not allowing cross examination of the experts has caused prejudice to the appellant as their opinion was relied upon to negate the appellant's plea/contention and therefore the least that follows is that as the cross examination of the experts who gave their opinions was not permitted/held, their opinion is to be ignored for the purpose of deciding the issue at hand. Applicability of test reports for classification of goods - Samples in respect of some bills of entry were tested and applied to other bills of entry - Held that:- the authorised representative of the appellant in his statement categorically stated that the appellant had imported artificial fur lining of the same quality, character and technical specifications (except colour) under all the bills of entry. Further the examination of samples drawn from a number of consignments imported under various bills of entry supported the said statement of the authorised representative. Therefore there is no requirement of drawing the samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The demand was confirmed on the ground that the impugned goods were classifiable under Chapter Heading 59.07 as against Chapter Heading 43.04 claimed by the appellant. The appellant had imported artificial fur lining under various bills of entry. The primary adjudicating authority vide order-in-original dated 30.5.1997 held the goods to be classifiable under 43.04 as claimed by the appellant and dropped the demand. Revenue went in appeal and CESTAT vide order dated 20.2.2001 allowed Revenues appeal by way of remand as under : 16. We, therefore consider that this matter needs to go back to the jurisdictional Commissioner of Customs for de novo consideration in the light of our above discussion. We, therefore, remand this matter to the jurisdictional Commissioner of Customs who will provide an opportunity to both the sides to present their respective case and will then pass speaking appealable order, as per law. Thus, the impugned order-in-original is set aside and both the appeals of the Revenue are allowed by way of remand to the jurisdictional Commissioner of Customs, as above. Pursuant to the aforesaid order of CESTAT, order-in-original dated 14.1.2002 was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cited several judgements in support of the said proposition : (ii) Initially IIT, Delhi gave opinion in favour of the appellant and it was only when Revenue wrote a detailed letter to IIT that the opinion was changed and therefore such opinion cannot be relied upon against the appellant. (iii) Only samples in respect of some bills of entry were tested and therefore in respect of other bills of entry, the test reports cannot be applied. (iv) While selling these goods were described as artificial fur lining. (v) The HSN Explanatory Notes for Chapter 56 of Customs Tariff cannot be used for classification of the impugned goods. (vi) The burden of proof that the goods are classifiable under 59.07 is clearly on Revenue as has been held by several judgements which were cited. 5. Ld. DR, on the other hand, stated that the Commissioner in the impugned order has analysed the issue of classification and has come to a clear finding that by virtue of the fact that the length of flock was ranging between 0.45 to 0.50 mm, such goods could not be classifiable under Heading 43.04 as artificial fur lining. He strenuously referred to the chapter headings 59.07, 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided on the touchstone of prejudice . The ultimate test is always the same, viz., the test of prejudice of the test of fair hearing. There is no doubt that there can be a situation whether denial of cross-examination of expert may not cause any prejudice and in such case not allowing cross-examination would not vitiate the proceedings. However, in the present case it is eminently arguable that not allowing cross examination of the experts has caused prejudice to the appellant as their opinion was relied upon to negate the appellants plea/contention and therefore the least that follows is that as the cross examination of the experts who gave their opinions was not permitted/held, their opinion is to be ignored for the purpose of deciding the issue at hand. 7. We have perused the show cause notice and the impugned order. We find that it was categorically mentioned in the show cause notice that the impugned fabrics comprised a synthetic knitted base and were coated/covered with coloured nylon flocks with an average flock height ranging between 0.45 0.50 mm. Even though the appellant sought cross examination of the person who wrote the test report, at no sage during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res and spinning into yarns, for making imitation suedes, for coating or decorating wallpaper, as a basis for face powder or -make up] . A combined reading of the above-quoted Explanatory Notes make it very clear that fabrics produced in a similar manner with textile fibres of length 5 mm and above are excluded from CTH 59.07 if they have the character of artificial fur of heading 43.04. The clear implication of this is that fabrics covered with textile flock of less than 5 mm length are not excluded out of the purview of 59.07 even if they have the character of artificial fur. We also find that the appellant have nowhere claimed that the impugned goods looked like fur of any particular animal. That however is not of any consequence because even if the impugned goods looked liked some fur, by virtue of the HSN notes cited earlier and the analysis above, because of the fact that nylon flocks had the length between 0.45 mm to 0.5 mm, the impugned goods do not get excluded from the scope of chapter heading 59.07. We may repeat that to exclude the goods from the scope of 59.07 (i) the flocks have to be of length 5 mm or longer and (ii) the goods should have the character of artifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the same quality, character and technical specifications (except colour) under all the bills of entry. Further the examination of samples drawn from a number of consignments imported under various bills of entry supported the said statement of the authorised representative. Therefore we do not find any infirmity in using the result of the test reports certifying the length of fibre to be between 0.45 mm to 0.5 mm for the goods imported under the bills of entry from where no samples were drawn. Indeed insisting on drawing samples from all the consignments when the authorised representative categorically accepted that the goods were of the same quality characteristic and technical specifications as the ones from which samples had been drawn would/could have invited the allegation of undue harassment. Samples are drawn when there is a dispute. When there were no dispute that the goods imported under other bills of entry were the same in quality characteristics and technical specifications, there was no requirement of drawing the samples from each and every consignment imported under each and every bill of entry. Thus this contention of the appellant is clearly unsustainable. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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