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TMI Blog2023 (10) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... he classification dispute is further on appeal before this tribunal - During the course of this process, Notice can be issued for reclassification demanding duty as per the proposed new classification. The demand will be finally confirmed only when the classification dispute attains its finality. Thus, there is no infirmity in the demand issued under Section 28 of the Customs Act, 1962 . Accordingly, the objection raised by the Appellant on this count is not sustainable. Fabrics having the characteristics of Denim fabric cannot be equated with the Denim fabric itself, if it does not otherwise satisfy the requirements of Chapter Note 52 - In the present case, the sample fabric satisfy the requirements of Denim fabrics in the warp yarp yarn, but does not satisfy the requirement in the weft yarn as its composition contains 4% of elastomeric material. Also, the weft yarn does not satisfy the requirement in the chapter note unbleached, bleached or dyed, grey or coloured a lighter shade of the colour of the warp yarns . Thus, the fabric cannot be called ,Denim fabric as per the Chapter Note 52, as it does not fulfill all the requirements of the chapter Note 52. For classifying the fabric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant. 3. Briefly stated facts of the case are that the Appellant imported the goods vide the said four Bills of Entry declaring the same as Cotton Polyester Fabrics classifiable under Customs Tariff Heading (CTH) 52113190. On examination, the department observed that the goods imported were Blue Coloured fabrics of 'Denim' classifiable under CTH 52114200. Samples were drawn in the presence of DRI officers and sent for testing to Customs Laboratory, Kolkata and Textile Committee Laboratory, Mumbai. The Reports received from the Laboratories indicated that the samples had the characteristics of Denim fabrics and the fabrics were three thread twill weave woven fabric and in the construction of the fabric, blue coloured (dyed) yarns entirely made of cotton in one direction and white textured polyester multifilament yarn reinforced with other material in the other direction has been used. Based on the Test Report, DRI concluded that the imported goods are 'Denim fabrics' and merits classification under CTH 52114200. Accordingly, Show cause Notices dated 31.10.2005 and 07.02.2006 were issued proposing for confiscation of the goods. In the Notices, the classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all consignments cannot be done based on these test reports. (vi) Therefore, the Appellant contended that the fabrics cannot be treated as Denim and it needs to be classified under Customs Tariff Heading 5211 3190, as declared by them. (vii) There is no material in the show cause notice to show that there was an assessment done in respect of all the four Bills of Entry. In the absence of any assessment so made, the question of short levy under section 28 would not arise. In support of this contention, the Appellant relied on the decision of this Tribunal in the case of Jaju Petrochemicals. 5. The Ld. A.R submitted that the CRCL Test Report clearly states that the goods imported has the characteristics of Denim fabrics. The Test Report confirms with the definition of Denim as given in the Chapter Notes to chapter 52. Accordingly, he prayed for rejecting the appeal filed by the Appellant. 6. Heard both sides and perused the appeal records. 7. Before going into the merits of the issue, we would like to discuss the preliminary objections raised by the Appellant. 7.1. The Appellant contented that the samples sent to CRCL Delhi were not representative samples of all the four B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and will be finally confirmed only when the classification dispute attains its finality. Thus, we find there is no infirmity in the demand issued under Section 28 of the Customs Act, 1962 . Accordingly, we hold that the objection raised by the Appellant on this count is not sustainable. 8. We observe that the issue involved in the present appeal is classification of the imported fabrics. The Appellant has declared the imported goods as Cotton Polyester Fabrics classifiable under Customs Tariff Heading (CTH) 52113190. On examination, the department observed that the goods imported were Blue Colored fabrics of 'Denim' classifiable under CTH 52114200. Samples were drawn in the presence of DRI officers and sent for testing to Customs Laboratory, Kolkata and Textile Committee Laboratory, Mumbai. It was reported that the samples had the characteristics of Denim fabrics and the fabrics were three thread twill weave woven fabric. It composed of dyed blue coloured cotton yarns in one direction and undyed (white) polyester staple fiber spun yarns along with elastomeric yarns in other direction . The composition is as under: Cotton yarn : 79.2%Polyester Yarns - 16,8% Rest being el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute elastomeric yarns in the weft. 12. From the above comparison of the Note to Chapter 52 and Test Report, we observe that the colour of the weft yarn does not satisfy the definition of Denim as mentioned in the Chapter Note 52. The composition of elastomeric material in the weft yarn indicates that the Test Report does not fully satisfy all the conditions required to classify the fabrics as a Denim fabrics. The Test Report only indicates that the fabric has the characteristics of Denim fabrics. The Test Report did not categorically say that the fabric is a Denim Fabric. Fabrics having the characteristics of Denim fabric cannot be equated with the Denim fabric itself, if it does not otherwise satisfy the requirements of Chapter Note 52. In the present case, we observe that the sample fabric satisfy the requirements of Denim fabrics in the warp yarp yarn, but does not satisfy the requirement in the weft yarn as its composition contains 4% of elastomeric material. Also, the weft yarn does not satisfy the requirement in the chapter note "unbleached, bleached or dyed, grey or coloured a lighter shade of the colour of the warp yarns". Thus, we hold that the fabric cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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