2019 (5) TMI 1586

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..... roceedings. We do find some merit in the submission as it would have been impossible to issue a show cause notice just a day after the bill of entry was filed; it would appear that the show cause notice was authored on some other date. Appellant had claimed classification as fabric containing 85% or more by weight of textured polyester filaments. It is seen that the Textile Committee did not find any contrary reason to suggest discrediting this contention. The customs authorities chose to revise the classification based on a test report generated through the Deputy Chief Chemist after testing of the remnant samples. We do not find any evidence of that test report in the records. The reliance placed on the results of testing by Deputy .....

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..... t proceedings were initiated very much later after the remnant samples were tested by the Deputy Chief Chemist at the Customs House. Both the original authority and the first appellate authority have confirmed the ineligibility for classification under the claimed heading consequent denial of benefit in notification no. 36/2003-Cus dated 1st March 2003. 3. Learned Counsel for the appellant draws attention to the decision of the Tribunal in Commissioner of Customs, Mumbai v. Atlas Mercantile Pvt Ltd [2018 (4) TMI 490 CESTAT MUMBAI] and Shri Lakshmi Cotsyn Ltd v. Commissioner of Customs Central Excise, Kanpur [2011 (263) ELT 299 (Tri.-Del.)] to contend that the second test conducted with the Deputy Chief Chemist sho .....

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..... he remnant samples. We do not find any evidence of that test report in the records. Furthermore, as made amply clear in the decisions of the Tribunal in re Atlas Mercantile Pvt Ltd and in re Shri Lakshmi Cotsyn Ltd, that as per circular no. 23/2004-Cus dated 15th March 2004, the expertise of the Textile Committee should be relied upon for a single test instead of test being carried out by both authorities. In the face of these decisions, the reliance placed on the results of testing by Deputy Chief Chemist is not acceptable. If at all, the proper procedure would have been for the remnant samples, after due notice to the importer, to be subject to re-test by the Textile Committee. Thus, report of the Deputy Chief Chemist cannot overrule .....

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