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TMI Blog2003 (1) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... of Acrylic Tow Waste classifiable under Sub-heading 5505.10 of the First Schedule to the Customs Tariff Act and claimed the benefit of Notification No. 30/97-Cus., dated 1-4-1997; that the consignment was purchased by them on high sea-sale basis from M/s. Garg Woollen Mills for Rs. 5,91,550/-; that the said Garg Woollen Mills had purchased the goods from M/s. Bollag International Corporation, U.S.A.; that the Commissioner of Customs, under the impugned order, has held the goods to be Acrylic Tow falling under Sub-heading No. 5501.30 of the Tariff; enhanced the value to Rs. 8,23,452, imposed redemption fine, confirmed duty and imposed penalty of equivalent amount. The learned Senior Counsel, further, submitted that the impugned goods have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laboratories just for testing without any suggestion and apparently the testing agencies have made tests in a biased manner and have given the test reports as per suggestive samples sent by the Department; that under these circumstances, no reliance can be placed on these test reports; that the Appellants have imported Acrylic Tow waste and not Acrylic Tow and the product in question is correctly classifiable under Sub-heading 5505.10 of the Tariff. 3.1 The learned Senior Counsel, further, submitted that the Adjudicating Authority has enhanced the assessable value; that the transaction value has to be accepted; that the impugned goods have been compared with bare acrylic fibre and the invoice dated 25-5-1998 of M/s. Bayer is not contempora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Bengal Iron Corporation v. Commercial Tax Officer, 1993 (66) E.L.T. 13 (S.C.). 3.3 The learned Senior Advocate also mentioned that there are certain calculation mistake in calculating the amount of duty. Finally, he submitted that no penalty is imposable on them as there is complete absence of element of mens rea; that in the present matter there is difference of opinion about the nature of the goods; that it has been held by the Supreme Court in Hindustan Steel Ltd. v. State of Orissa, 1978 (2) E.L.T. (J 159) that "penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 2 Mtrs. of linear density less than 67 decitex and total measurement of tow was more than 22000 decitex. The learned SDR, further, submitted that the Appellants perhaps found the two test reports conflicting as in their interim reply the test report given by Chemical Examiner has been wrongly reported; that as per interim reply the Chemical Examiner has mentioned in the test report that "the tow contains two small patches of fused filaments" whereas test report, in fact, mentions that "it is free from fused fibres and extraneous matters." He also mentioned that the Chemical Examiner also mentions that the sample was of crimped, parallel drawn filament having uniform length and diameter; that it is thus clear that all the parameters speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fibre Tow and Artificial Filament Tow apply only to Tow, consisting of parallel filaments of a uniform length equal to the length of the tow, meeting the following specifications :- (a) length of tow exceeding 2 mtrs. (b) twist less than 5 turns per metre; (c) measuring per filament less than 60 deniers; (d) synthetic filament tow only: the tow must be drawn, i.e. to say be incapable of being stretched by more than 100% of its length; (e) total measurement of tow more than 18000 deniers. 5.2 A perusal of both the reports, given by Chemical Examiners of CRCL and Textile Committee Laboratory, reveals that the specification mentioned in Note 1 to Chapter 55 are satisfied by the product imported by the appellants inasmuch as the product i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be imposed on Acrylic Tow. The Commissioner himself while considering the aspect of valuation in the impugned order has observed that Acrylic Fibre and Tow are two different goods. It is not the case of the Revenue that Acrylic Fibre in respect of which Anti-dumping duty has been imposed and Acrylic Tow are one and the same thing. Anti-dumping duty cannot be imposed by Circular issued by the Ministry of Finance because as per Section 9A of the Customs Tariff Act, 1975 Anti-dumping duty can be imposed by the Central Government by notification in the Official Gazette on satisfaction that the particular article is exported from any country or territory to India at less than its normal value. Accordingly we hold that Anti-dumping duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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