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TMI Blog2018 (4) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... rised yarn, the result of such reports went against the assessee. An identical matter came before the Tribunal in one of the other importers identically placed and was dealt with the Tribunal in the case of Shri Lakshmi Cotsyn Ltd. vs. CCE, Kanpur [2010 (9) TMI 386 - CESTAT, NEW DELHI] in the wake of identical facts and circumstances, where the first report of the Textile Committee was in favour of the assessee and the subsequent retest by the Chief Chemist was against them. It was held in that case that CRCL is in favour of the Department, initial report of Textile Committee and the report of GCTL, Kanpur were in favour of the party, the benefit of doubt naturally has to be given to the assessee especially when the test clarified to be subjective. Appeal dismissed - decided against Revenue. - C/1118/08 - A/85682/2018 - Dated:- 20-3-2018 - MS. ARCHANA WADHWA, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Appearance: Shri R. Kapoor, Commissioner (AR), for appellant Shri Prasad Paranjape, Advocate, for respondent Per: Ms. Archana Wadhwa Being aggrieved by the order passed by Commissioner (Appeals), Revenue has filed the present appeal. 2. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts as also relied upon documents were supplied to the importer and as requested by them, the whole modalities and methodology adopted by CRCK and Textile Committee were explained to them, The original adjudicating authority by opining that since NHCL test reports are based on the modalities and methodology decided by the experts of two agencies including the Textile Committee representatives, the same are authentic and relevant for the purpose of classification under Customs Tariff Act and the same would prevail over the Textile Committee reports issued at the time of original examination of the goods. He accordingly confirmed the demands raised against the assessee. 7. The said order of the original adjudicating authority was challenged by the assessee before the Commissioner (Appeals). It was specifically contended by the respondent that that textured / non-textured yarn content in a fabric is to be ascertained by visual examination and does not involve any chemical test and therefore the report of Dy. Chief Chemist could not be held to be of any credence; that the only test possible for differentiating between textured and non-textured yarn was visual examination; that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt, the decision should be in favour of the assessee.. They also contended as under:- 6. The appellants have further contended in the written submissions that the impugned Order was beyond the scope of the Less Charge Demand Notices in as much as the interest u/s 28AB was also confirmed despite there being no proposal for the same in the Demand Notices; that the Order- In-Original was passed in gross violation of principles of Natural Justice, and several documents were relied upon in the impugned order which were neither disclosed in the Demand Notice, nor made available to the Appellant, such as 1) Test reports from the DyCC referred in the Demand notices and in para 5 (a), 5(b), 14 of the impugned order; 2) Test Reports from the Jt. Director, New Customs House laboratory, Mumbai - NCHL (in-house laboratory of CRCL, New Delhi) vide letters dated 10.02.2004 and 13.02.2004 relied in para 3 of the impugned order; 3) Test reports by the Committee constituted at the request of the Association of Importers and Exporters of Manmade Textiles, after conflict in test reports of DyCC and Textile Committee, relied in para 15 of the impugned Order; 4) Request letter issued to textile Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther finishing etc which may result in distorting the original appearance of the yarn under scrutiny. In such circumstances it is but obvious that the scope of human error cannot be ruled out in such cases as in the instant one. Even if it is to be assumed that the Chief Chemist of DyCC had adopted the same methodology for testing the sample as decided by the said Committee and conveyed to the appellant, it cannot be presumed that the same therefore would be free from any doubt. It is further seen that the reason for holding out the constituent yarn as textured yarn is also not disclosed in any test report i.e. it is not disclosed as to whether any of the seven representative samples in the instant case was found with any such bulkiness or stretchability or crimps or separate curls or loops or nodes or with disturbed parallel orientation or special twist characteristics, so as to arrive at the conclusion that the same were textured yarn. It is seen that the original Adjudicating authority admits that there was no standard method like IS ASTM in the literature available for determining the yarn as texturised or otherwise. The decision of the Hon'ble Tribunal in the case of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermitting exports has to be adopted and cannot be disregarded in the face of the Deputy Chief Chemist and SASMIRA reports pointing out to the contrary and extended the benefit to the respondent. He also observed that even if there are two contrary reports, the one which is in favour of the assessee has to be adopted and the benefit of doubt has to be extended. Accordingly, he set aside the order of the lower authorities. 10. We find that there is no dispute about the factual position. Admittedly, the first report of the Textile Committee was in favour of the assessee. It is also seen that there were number of importers identically situate and the dispute arose in the case of number of them. The matter was taken up at the Association level and it was requested that a committee be formed to test the presence of texturised yarn in the fabrics. It is only thereafter a committee was formed and methodology was laid down for the purpose of testing the presence of the texturised yarn, the result of such reports went against the assessee. 11. An identical matter came before the Tribunal in one of the other importers identically placed and was dealt with the Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to textile and textile articles. That is why, in our considered opinion, the DGFT prescribed Textile Committee as the nominated agency for testing of textile and textile article for the presence of hazardous chemicals. Under these circumstances, the first report of the Textile Committee given by the Assistant Director cannot be easily brushed aside. The reasoning given by Shri Venkitachalam, Assistant Director during cross-examination that they were under misconception that mingled and tangled yarn cannot be textured and realised the mis-conception after visiting several texturised units looks rather strange. The report of the Director (Laboratory) forwarding the second test report refers to discussion with the Commissioners of Customs. It states that earlier there was some ambiguity in method adopted for determining whether the yarn is textured/nontextured yarn and this would cause error in our earlier reports referred in this letter. However, the parameter was sorted out after discussion with Commissioners of Customs . It is not revealed as to how the ambiguity in the method for test can be sorted out after discussion with the Commissioner of Customs. Learned Jt. CDR in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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