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TMI Blog2022 (1) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the above appeals involved is that the goods imported by the Appellants declaring the same as Polyester Bed Cover are Polyester Bed Cover or Polyester Fabric and whether the same is classifiable under Custom Tariff Heading 63041930 as declared by the Appellant or under Custom Tariff Heading 54075490 as claimed by revenue. 1.1 Brief Facts of the case are that the Appellants are engaged in business of made up articles of textiles and importing 100 % Polyester Bed Cover. The Appellants filed bills of entry declaring the goods as 100% polyester bed cover under CTH 63041930, the goods imported were examined by Directorate of Revenue Intelligence (DRI) where it was observed that the clothes material were of 3 pieces of clothes sheets roughly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elying upon the expert committee's opinion & the report of textile committee was adjudicated vide order dated 26.03.2018. 1.4 Aggrieved by the order dated 26.03.2018, Appellants filed appeals before CESTAT which vide order dated. 11.07.2019 remanded the matter directing that the case be decided by the adjudicating authority on the basis of statutory definition and Chapter Notes of Section XI of Custom Tariff as well as on HSN Notes not on the general meaning of made ups. The Adjudicating authority vide order dated 29.10.2020 has again confirmed the demands on the same grounds. Therefore, the present appeals. 2. Heard both sides and perused the records. The department to classify the goods as "polyester woven fabric" under CTH 54075490 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were tested at two different recognised institutions and expert committee. 2.3 The department has relied upon M/s Rudra Vyaparchem vs Commissioner of Customs, Kolkata 2019 (370) E.L.T. 412 (Tri. - Kolkata) as similar goods to Appellant. The above case cannot be relied upon as it is based on the conclusive textile committee reports while in the present case undisputedly inconclusive as to the composition of samples, therefore the order of CESTAT in Rudra Vyaparchen case is distinguishable. 2.4 Secondly to decide the correct classification of goods the commissioner held the Subheading 540751 to 540754 cover "other woven fabric, containing 85% or more weight of textured polyester filaments. For that the authority has relied upon report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary. It is for the taxing authority to lay evidence in that behalf even before the authority first adjudicating." In HINDUSTAN FERODO LTD. Vs COLLECTOR OF CENTRAL EXCISE, BOMBAY 1997 (89) E.L.T. 16 (S.C.) : "It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed." Also in recent order Cestat held in the matter of ALPHA FOAM PVT. LTD. Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-I 2019 (365) E.L.T. 636 (Tri. - Mumbai): "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is classified under the chapter heading claimed by the assessee is correct or not, the case of the department will fail. This gets support from the following judgments: * PEPSICO HOLDINGS PVT.LTD.- 2019(25) GSTL 271 (Tri.-Mum) "8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the latitude for invoking Section 11A of Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertaining to recovery of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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