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TMI Blog2022 (1) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... he classification of goods declared by the appellants cannot be disturbed. Appeal allowed. - Customs Appeal No.10641-10642 of 2021 - A/10046-10047/2022 - Dated:- 25-1-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Jatin Mahajan, Advocate for the Appellant Shri J. A Patel, Superintendent (Authorized Representative) for the Respondent ORDER These 2 appeals are from the bunch of appeals heard on 29.09.2021 and order was reserved. 2. Shri Jatin Mahajan, Learned Counsel after reserving the order on 29.09.2021 mentioned that he has information that the proprietor of the firm has expired therefore, the orders on these appeals may be kept in abeyance. Subsequently, vide letter dated 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the warp and weft used in making fabric cannot be ascertained. If we go by all the above reports mentioned except for the report dated 21.03.2017 which classifies the goods as quilt cover all the other reports are inconclusive. If at all any report to be relied upon it is report dated 21.03.2017 which was brushed aside as tampered by the department without giving any details who tempered with the report and what action was taken. 2.2 Even if we accept the corrected report and all other reports they are all inconclusive and instead of relying upon them they should have been sent for retesting which the commissioner categorically denied stating that he does not find any cogent reason to grant resampling and retesting at this stage as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtured yarn the warp and weft should be more than 85% which is not the case in all the test reports. Therefore, the only conclusion that could be drawn from the above facts is department has not discharged their burden of proof and the classification of the department should be rejected as held by Hon ble Supreme Court and CESTAT in various decisions; In case of UIO vs Garware Nylons Ltd. 1996 (87) E.L.T. 12 (S.C.) held: The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he office of Chemical Examiner is not clear about the classification and needs further clarification before arriving at final decision. It is seen that the onus of establishing the change of classification is on Revenue and from the records it is apparent that Revenue has been unable to produce sufficient evidence to substantiate the claim. The facts in the above judgment of Cestat is similar to the Appellant s case as in the above case also there is an inconclusive report which has been relied upon as in the appellant s case and the Cestat was pleased to allow the Assessee s appeal. 2.5 Without prejudice to above findings, it is a settled legal position that if the goods are not classifiable under the chapter heading proposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the basis that the tablets were classifiable under Heading 17.04 as items of confectionary. This would have given the appellant the opportunity to place on record such material as was available to it to establish the contrary. It is impermissible for the Tribunal to consider a case that is laid for the first time in appeal because the stage for setting out the factual matrix is before authorities below. In view of the above settled law, irrespective whether the classification claimed by the appellant is correct or not since the classification proposed by the Revenue is absolutely incorrect, the entire case of the Revenue will not sustain. 3. Since the revenue has not been able to discharge their burden of proof. Hence the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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