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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 ..... from the said consignments were sent by the Revenue to Textile Committee indicating that the fabrics in question are made out of non texturized polyester filament yarn. On that basis, the Bills of Entry were assessed and the goods were cleared. 4. Subsequently an intelligence was gathered that a number of importers, during the said period, imported polyester fabrics by misdeclaring the technical characteristics that the fabrics were made out of non texturised yarn whereas the same were made out of texturised yarn, attracting higher rates of duties. Accordingly the remnant samples drawn at the time of examination and earlier tested by the Textile Committee, Mumbai were forwarded to the Joint Director, New Custom House Laboratory, NCH, Mumbai for retesting. As per the test reports of the Joint Director, New Custom House Laboratory, it was observed that the fabrics in question were containing 85% or more polyester yarn, composed of texturised filament yarn and are properly classifiable under Chapter Heading 54077200 and attracts the higher rate of duty. Accordingly, less charge notices were issued to the importers in terms of the provisions of Section 28(1) of the Customs Act demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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; that it was an admitted position that there was no standard method like IS & ASTM in the literature available for determining the yarn as texturised or otherwise; that it has not been shown that the methodology given for distinguishing the non-textured and textured yarn in the fabric was adopted by the Dy CC; that moreover the methodology shown does not take into account the effect of various mechanical, physical and chemical processes such as scouring, bleaching, High Temperature and High Pressure Dyeing, heat setting, calendaring, Stentering and further finishing etc, whereby the original appearance of the constituent yarns in the fabric gets distorted. The Hon'ble Tribunal's decision in the case of Raja Imports and Exports v. Collector of Customs, Bombay, reported in 2000 (119) ELT 346 (Tribunal), was relied upon to show that where no chemical test was conducted and only visual examination was done, there was no reason to disagre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing himself about the description thereof by testing it through the Textile Committee, a Govt. organization under Ministry of Commerce and Industry, and has not been withdrawn/ cancelled; that the test reports of the Dy.CC are based on alleged remnant samples re-tested behind the back of the Appellant, by persons whose names are also not disclosed and that even the source of the remnant samples tested by them was uncertain, and that therefore the Appellants could not be saddled with duty demand on those bases thereof." 8. The Commissioner (Appeals) vide his impugned order accepted the assessee's stand by observing as under:- "7. On a careful perusal of the records and the submissions of the appellant it is seen that there is considerable force in the case of the appellant. It is an accepted position as seen from the impugned order that the test for ascertaining the textured or non-textured nature of the constituent filament yarn content of any fabric is only by visual examination without involving any chemical test. The impugned order also shows that it is also to be ascertained by visual examination that presence of curls, crimps and loops in the individual filament are not due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt in the instant case especially in the absence of any conclusive test report, free from any doubt, and thereby the instant less charge demand notices cannot sustain. Even otherwise, in not providing the appellant the complete set of documents relied upon in the impugned order even as implicit in the remand order of the Hon'ble Tribunal, there is a clear case of violation of the principles of natural justice. Regardless of this however, and in view of the above undisputed position and the facts and circumstances of the case as available on records it is clear that there cannot be any question of liability towards any differential duty or interest. The stay application and the appeal therefore are allowed and the impugned order is set aside." Hence the present appeal by the Revenue. 9. After going through the impugned order and after carefully considering the submissions made by both the sides, we find that admittedly the initial report of the Textile Committee was in favour of the assessee and based upon the same, their imported consignments were cleared. It is only thereafter the remnant samples were sent to Chief Chemist, who adopted a diametrical opposite view. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector (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 authorities which is not permissible. The order of the Commissioner also refers to certain correspondence between the Member Secretary, Textile Committee, Mumbai and the Chief Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner is not appreciated. This is also one reason which has a bearing on the credibility of the second report. 8.3 Having held that the relied portions of HSN Notes have not prescribed methods for determining whether yarn is textured or non-textured yarn, we do not find any valid reason to disregard the report of GCTL which is in favour of the assessee. We have not been shown any reliable evidence that advance test is mandatory to decide whether the yarn is textured yarn or not. The cross-examination of the experts namely, Shri C.R. Venkitachalam, Assistant Director, Shri M.D. Mondal, Chemcial Examiner, Shri R.B. Saxena and Professor Shri H.D. Dixit do not show that such test by sophisticated machinery is required to be ascertained whether the textured yarn is textured or not. It is clearly coming out the test is subjective. In a subjective test, the benefit of doubt has to necessarily be extended to the assessee." 12. Inasmuch as the identical facts and circumstances are the subject matter of the present appeal of the Revenue, which already stands taken note of by the Tribunal in the said referred decision, we find no justifiable reason to take a different view. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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