TMI Blog2011 (10) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... tile Committee, Mumbai c)Textile Committee, Delhi as per the Petitioner letters dated 12.8.2011, 23.8.2011 and 25.8.2011 and that on confirmation that the materials imported are 100% Remi woven dyed fabric, direct the Respondents to release consignment immediately as per law. 2. The petitioner herein placed indent with M/s. Shaoxing Yetco Textile Company limited, China for supply of 60,000 meter of 100% dyed woven fabric with specification made from RAMIE material. Based on the indent placed, the petitioner received sample materials. The assessee got the same was tested at Regional Laboratory, Textile Committee, New Delhi, Ministry of Textiles, Government of India. The testing showed the material as 100% Remi Woven dyed fabric classifiable under the Customs Tariff Heading 'woven fabric of other vegetables fibres under H.S. Heading 53.11." 3. On the arrival of the materials, the petitioner filed Bill of Entry for clearance through their clearing agent on 25.7.2011. On the first check, the customs authorities drew sample from the imported materials and the same was sent for testing toRegional Laboratory, Textile Committee, (Ministry of Textiles, Government of India), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MILLS LTD. v. ASSTT. COMMNR. OF CUSTOMS, considering the above circular issued by the CBEC dated 21.5.1955 on retesting and permitted the petitioner therein to withdraw the petition and to approach the High Court. Based on the same, this Court passed an order in W.A.Nos. 832 to 835 of 2005 dated 1st December 2006 directing resting of the sample materials taken from the detained goods in accordance with Notification dated 21.5.1955. In the light of the understanding thus given by the Board on re-testing and the facts of the case on hand demanding retest, on the mere score that the testing was done by specialized agency per se may not be a good ground to reject the plea. 5. On notice, the respondents filed a counter wherein it is stated that the imported material was tested by the Textile Committee, which is an independent body functions under the Ministry of Textiles. Since the Textile Committee is a statutory body approved by the Government of India, which has given the test report on the samples taken from the imported materials, there is no need for sending the samples taken from the imported consignments once again for retesting. Supporting the said line of reasoning, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as under:- "19. Disposal The Board has decided that in cases where the test results (i) agree with the declarations, the samples should be returned soon after the goods have been cleared. (ii) do not agree with the declaration of the parties who have a right of appeal against the order based on the test result, the remnants should be retained upto the expiry of the appeal period. (iii) and in cases where the test result are disputed, the remnants should be retained till the dispute is finally settled. (iv) in certain other cases where the remnants will be of some use to the Custom House they may be retained. (C.B.R.Lr. No. 70/13/53-Cus. I of 16.1.54 F.C. 546/52) Note In amplification of the above the Board have issued the following instructions:- 1. When a party is dis-satisfied with the results of the original test for classification of any goods for tariff or Import Trade Control purposes, it is open to him to make a retest of the sample, on payment of the prescribed retest fee. Requests for such retest should normally be complied with. Such retests should, however, be made only on the remnants of the samples originally tested. 2. Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on by the learned counsel for the Revenue reported in 2005-TIOL-96-SC-CT-LB [STATE OF H.P. v. GUJARAT AMBUJA CEMENT LTD.,], does not support the case of the Revenue that wherever there is an appeal remedy, there should be an automatic dismissal of the writ petition. Consequently, I do not find any provision of law, which support the case of the Revenue that the writ petition has to be dismissed since the order impugned herein is an appealable one. 12. Given the fact that the remedy under Section 226 of the Constitution of India is a discretionary remedy and that the highest administrative functionary viz., Central Board had itself viewed the request for retesting should normally be granted, I do not find any justification in the contention of the Revenue that the writ petition has to be dismissed. 13. As regards the contention of the Revenue that the assessee has a right of appeal as against the test results, as provided for under Clause 19(ii) of the Manual, a reading of the said sub clause (ii) of Clause 19 shows that the right of appeal referred therein is as regards the order passed based on the test results leading to the Revenue classifying the imported goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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