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2016 (3) TMI 511 - AT - CustomsValidity of opinion - No opportunity for cross examination - Appellant contended that experts opinions should not be relied upon as their cross-examination was not permitted - Held that:- there may be situations where it is felt that fair hearing would make no difference-meaning that a hearing would not change the ultimate conclusion reached by the decision-maker in such situations, fair procedures appear to serve no purpose since the right result can be secured without according hearing/cross-examination. It may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of prejudice. There is no doubt that there can be a situation whether denial of cross-examination of expert may not cause any prejudice and in such case not allowing cross-examination would not vitiate the proceedings. However, in the present case it is eminently arguable that not allowing cross examination of the experts has caused prejudice to the appellant as their opinion was relied upon to negate the appellant's plea/contention and therefore the least that follows is that as the cross examination of the experts who gave their opinions was not permitted/held, their opinion is to be ignored for the purpose of deciding the issue at hand. Applicability of test reports for classification of goods - Samples in respect of some bills of entry were tested and applied to other bills of entry - Held that:- the authorised representative of the appellant in his statement categorically stated that the appellant had imported artificial fur lining of the same quality, character and technical specifications (except colour) under all the bills of entry. Further the examination of samples drawn from a number of consignments imported under various bills of entry supported the said statement of the authorised representative. Therefore there is no requirement of drawing the samples from each and every consignment imported under each and every bill of entry. Classification - Whether HSN Explanatory Notes for Chapter 56 of Customs Tariff can be used - Held that:- fabrics produced in a similar manner with textile fibres of length 5 mm and above are excluded from CTH 59.07 if they have the character of artificial fur of heading 43.04. The clear implication of this is that fabrics covered with textile flock of less than 5 mm length are not excluded out of the purview of 59.07 even if they have the character of artificial fur. The appellant have nowhere claimed that the impugned goods looked like fur of any particular animal. That however is not of any consequence because even if the impugned goods looked liked some fur, by virtue of the HSN notes cited earlier and the analysis, because of the fact that nylon flocks had the length between 0.45 mm to 0.5 mm, the impugned goods do not get excluded from the scope of chapter heading 59.07. Therefore, to exclude the goods from the scope of 59.07 the flocks have to be of length 5 mm or longer and the goods should have the character of artificial fur.
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