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2012 (10) TMI 990 - AT - CustomsClassification of goods - Misdeclaration of goods - Held that:- From the tariff description and the headings reproduced earlier, it can be seen that the sole criterion required to be fulfilled for items imported to be classified under 7013 32 00, is the linear coefficient of expansion. The test memos had clearly indicated that this aspect is required to be verified. The Chemical Examiner has chosen just to say that since there was no breakage, the thermal expansion is nil. When the heading required specific indication that linear coefficient of expansion is less than 5 x 10-6 per Kelvin, in our opinion, this statement of the Chemical Examiner was not sufficient. In fact, the department should have required the Chemical Examiner to specifically indicate the linear coefficient of thermal expansion. Therefore, when the appellants requested for retest by CGCRI, Kolkatta, it could have been considered. In any case option was available to the department to send it for retest to the Chief Chemist at Delhi which was also not done. We have a blank statement from the Chemical Examiner in the test report that, since there was no breakage on hearing and cooling, it indicates lower linear coefficient of expansion. How can we conclude whether it is below the level prescribed in the heading or not is not indicated by the Chemical Examiner. We could have appreciated if he stated clearly that it is lower than what is prescribed in the tariff heading. Even this is not forthcoming from the reports. On the other hand, the supplier of the appellants and CGCRI has clearly measured the linear coefficient of expansion and have indicated the same. Under these circumstances, we have no option but to hold that the department has failed to show and prove that the classification of the goods in question would come under 7013 32 00. Whether there was misdeclaration of description by the appellants - Held that:- After opening the packages and inspection, the examining officer had found the goods to be contained in 2 packages and the goods were found to be “Opal Glassware Dinner Sets”. The fact that even after finding the goods to be Opal Ware on examination, the same were allowed to be cleared when the Bills of Entry had been filed as Glassware supports the claim of the appellants that there was no mis-declaration since Opal glassware is nothing but Glassware. - examination reports in ICD, Vapi go against the department. Further, we also find that according to ASTM C-162-05 Standard Terminology of Glass and Glass Products, “Opal Glass” means, a glass with fiery translucence; typically nearly opaque white glass. “Borosilicate glass” means silicon glass with B2O3 content above 4 weight percentage characterized by a moderate to low thermal expansion, long in viscosity versus temperature, and low in density. While borosilicate glass can be Opal glass, it cannot be other way round. From the tariff description, the classification would depend upon the coefficient of thermal expansion and not merely the percentage of boron oxide or the trade name Opal Glass. - findings of misdeclaration of description and misclassification cannot be sustained. Commissioner has not followed proper procedure for redetermination of value and for rejection also while initial grounds for rejection are acceptable after giving an opportunity to the importer and considering the submissions, there has to be a categorical finding as to why the transaction value is not acceptable. In this case the two grounds for rejection of transaction value is mis-declaration of value and inability of the General Manager to explain the difference between their price and price list, dated 9-2-2004 of the supplier. If the General Manager could not explain it at the time of investigation, it does not mean that they could be permanently shut out from explaining afterwards. Therefore, the submissions made during the hearing and in reply to the show cause notice should have been considered. - impugned order is set aside and the matter is remanded to the Original Adjudicating Authority for fresh adjudication - Decided in favour of assessee.
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