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TMI Blog2025 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... fine and penalty. The Revenue has separately filed an appeal challenging this order for non-levy of mandatory penalty of Rs. 15,59,363/- under section 114A of the Customs Act, 1962.[the Act] 2. Facts of the case are that an Intelligence was gathered that the appellant were trying to import the 100% polyester knitted cut pile fabric under two Bills of Entry [BE] Nos. 769991 dated 21.02.2009 and 776711 dated 24.03.2009 by mi-declaring the item as "100% Polyester Knitted Fabric" thus by mis-declaration and mis-classification, they were trying to evade the customs duty. The goods were examined by the SIIB officers and samples were drawn and sent to Textile Commission [TTC], New Delhi for testing. On the basis of TTC report dated 18.03.2009 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dav, the authorized representative for the Revenue. 4. The basic issue to be decided is whether "100% Polyester Knitted Fabric" imported by the appellant were mis-declared and mis-classified under CTH60059000, attracting Customs duty @ of 10% Adv. or the same merits classification as "Polyester Cut Pile Fabric" under CTI 60019200 attracting customs duty at the rate of 10% Adv. or 4Rs.100/- per KG, whichever is higher. 5. For considering the issue, it is necessary to quote the chapter heading 60 having six main headings, which is further divided into various sub headings as under: "6001:- Pile fabrics including "long pile" fabrics and terry fabrics, knitted or crocheted 6002:- Knitted or crocheted fabrics of a width not exceeding 30 cm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re" falling under chapter heading 6001. It is also necessary to quote the two test reports on which the entire controversy is based: TTC TEST REPORT IN RESPECT OF B/E NO. 769991 DT.21.02.2009 Sample reference No. Test report No. and date received from TTC Declared description of fabrics Fabrics found on Testing 279-A 1252/TC/SE/LDE/08-09 dated 18.03.2009 100% Polyester Knitted Fabric 100% Polyester Cut Pile Fabric 279-B 1253/TC/SE/LDE/08-09 dated 18.03.2009 100% Polyester Knitted Fabric 100% Polyester Cut Pile Fabric 279-C 1254/TC/SE/LDE/08-09 dated 18.03.2009 100% Polyester Knitted Fabric 100% Polyester Cut Pile Fabric TTC TEST REPORT IN RESPECT OF B/E NO. 776711 DT. 24.03.2009 Sample reference No. Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6001 99 10 and 6001 99 90 which covers pile fabrics of 'other textile materials. Now the only chapter sub-headings which are left in chapter heading 6001 are sub-headings 6001 91 00 and 6001 92 00 which covers all types of pile fabrics 'other' than long pile fabrics and looped pile fabrics. As the present fabrics is of 'cut pile structure' it can be classified under 600 1 92 00 being of man-made fibers. Thus the impugned fabrics most appropriately merits classification under chapter sub-heading 6001 92 00 chargeable to Basic Customs Duty (BCD) @ 10% or Rs.1 00/- per kg., whichever is higher". 8. We agree with the above findings as there is no reason to doubt the veracity of the test report by the experts in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible in evidence to sustain penalty. The proprietor of the firm having categorically accepted the test report and paid the entire duty amount is a clear admission on his part. In view of the settled principle of law by the Apex Court in Commissioner of Central Excise, Madras versus Systems & Components Pvt. Ltd. - 2004 (165) ELT136 (SC) "what is admitted need not be proved ", nothing further is required to be substantiated by the department. Thus, there is no iota of doubt that the appellant had mis-declared the classification of the goods in question as " 100% Polyester Knitted Fabric" and classified the same under chapter heading 6005 9000, which actually covers "warp knit fabrics". 10. We cannot ignore the conduct of the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 of the Act. Consequently, the differential customs duty calculated by the adjudicating authority in respect of the two bills of entry is affirmed. With regard to imposition of penalty under section 114A of the Act, the same needs to be upheld as the appellant had resorted to suppression of facts resulting in evasion of duty. Appeal No. C/353/2010 12. We may now consider the appeal filed by the Revenue, challenging the impugned order on the ground that the adjudicating authority had failed to impose the mandatory penalty under the provisions of section 114A of the Act in respect of Bill of Entry No. 776711 dated 24.03.2009. In the impugned order the adjudicating authority had imposed penalty under section 114A of equivalent amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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