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TMI Blog2022 (11) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellants were importing goods namely Polyester Bed Cover. The Appellants filed bills of entry declaring the goods as 100% polyester bed cover under CTH 6304, the goods imported were examined by Revenue. The officers of SIIB, Mundra examined the goods and it was observed that the clothes material were of 3 pieces of clothes sheets roughly and unsymmetrically stitched on two sides, one side fold and one side open. Revenue sent a letter to Textile Committee, Mumbai along with samples for testing and classification purpose. The textile committee in its test report dated 06.06.2017 reported that the item is 100% Polyester and warp is textured yarn but the weft cannot be ascertained and expressed opinion that 39.8% is textured yarn and remaining 60.2% cannot be ascertained. With regard to query about the correct description and classification, it was stated that it could not be ascertained as to whether the weft yarn is filament yarn or staple spun Yarn, hence HS code could not be provided. The revenue also sent the samples to Ahmedabad Textiles Industry‟s Research Association (ATIRA) to ascertain whether the said fabrics are made up of filament yarn/ staple yarn and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt cannot be relied upon as held by the CESTAT in case of Alpha Foam Pvt. Ltd. Vs. Commissioner of Central Excise, Pune -I 2019(365) ELT 636 (Tri.) 2.2 He further submits that the finding of the Learned Adjudicating authority holding on the basis of quality of sewing is erroneous as sewing can be hand or by machine. The Chapter Note of relevant tariff heading does not specify the kind of sewing to be carried out. Further the word used is otherwise in addition to sewing or gumming which implies that the most important consideration for falling under the definition of Made ups‟ is assembling and not the means of assembling. The impugned goods i.e. bed cover‟ are closed from three sides with two sides machine stitched. Hence, a plain reading of Note 7 in general and (f) in particular makes it obvious that the goods so presented for assessment can only be treated as made-ups irrespective of the quality of stitching. Unless an article of textiles falls under the meaning of Note 7, it will not be treated as made up. This facts is supported by CBEC circular No. 557/53/2000 dated 03.11.2000 which clarified that Dhoti/Sarees are not classified as made up because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertained. 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 samples 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter of ALPHA FOAM PVT. LTD. Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-I 2019 (365) E.L.T. 636 (Tri. - Mumbai): The impugned order clearly recognises that the test report is not final. However, he continues to rely on the said report. He has relied on the fact that the original adjudicating authority has evaluated the product in terms of the technical literature available. We find that the office of the chemical laboratory is not sure of exact classification and has raised some doubts about classification, it is not open to original adjudicating authority to decide the issue suo motu without going back with the said clarification to the office of the Chemical Examiner. The Commissioner (Appeals) has in his order observed that the technical basis of the Dy. Chief Chemist is quite clear whereas the report itself shows that the 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 fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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