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TMI Blog2022 (6) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellant is that department has not discharged the burden of proof of classifying the impugned goods under chapter 54 - applicability of case of MS SUNRISE TRADERS, JAI DURGA IMPEX, ALISHAN IMPEX, SATISH JINDAL, ADITYA LOOMTEX, TUSHAR TILAK, JMD TRADING CO, MOHIT SOIN, AJAY HIRALAL VIJ, JAI HANUMAN OVERSEAS, PANKAJ KUMAR KATARIA, PANKAJ KUMAR, SHREE SHYAM INTERNATIONAL AND TUSHAR GUPTA VERSUS C.C. -MUNDRA [ 2022 (1) TMI 468 - CESTAT AHMEDABAD] . HELD THAT:- In the relied upon order in the Textile Committee report, it was mentioned in the column of correct description and Classification of the sample that appropriate HS Code could not be provided due to rupture of yarn in weft while untwisting, the condition of having 85% texturised poly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhanushali is not tenable, hence set aside. Moreover, when department s claim of change of classification failed, the personal penalties being consequential to the main case of classification would also not sustain. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 61.5% cannot be ascertained, therefore CTH cannot be decided. Since actual composition of texturised and Non texturised yarn was not forthcoming hence, vide letter sample was drawn and sent to Ahmedabad Textile Research Association (ATIRA) for ascertaining the nature and composition of goods, ATIRA confirmed that the samples are made up of 100% polyester and contains all texturised filament yarn. As the fabric has been peach finished the filament yarn are damaged, hence actual strength of warp and weft yarns used in making the fabric cannot be determined. Show Cause Notices were issued to the Appellants relying upon the Textile Committee Reports and statements of various persons. Later on Show Cause Notices were adjudicated confirming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause Test reports of textile committee and ATIRA are conclusive and decisive. Also the forgery of textile committee report by the appellants has been proved which discharges the burden on part of revenue. 3.1 Now before moving further we proceed to examine whether the facts of the Sunrise traders order supra can be applied in the present set of appeals or it is distinguishable for the reasons stated by the revenue. In the above relied upon order in the Textile Committee report, it was mentioned in the column of correct description and Classification of the sample that appropriate HS Code could not be provided due to rupture of yarn in weft while untwisting, the condition of having 85% texturised polyester yarn to classify under CTH 5407549 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the authority first adjudicating." In HINDUSTAN FERODO LT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing 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." Since we have already dealt the above reports of Textile Committee and ATIRA which are truly identical in nature, we find no reason to change our findings on the basis of the above reports as no new facts have been brought to our attention which warrants such a change. Since the revenue has not been able to discharge their burden of proof hence the classification of goods declared by the appellants cannot be disturbed. 3.2 Now coming to the contention of revenue regarding forgery of the textile committee report, we do not find any reason to go into the detail as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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