TMI Blog2013 (12) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner is directed to re-quantify the duty liability - neither side has challenged the enhancement of value – Therefore the Commissioner is also directed to re-determine the penalty – Decided in favour of Assessee. - C/2/2011 - Final Order No. A/129/KOL/2012 - Dated:- 16-2-2012 - Shri S.K. Gaule and D.M. Misra, JJ. Smt. Shikha Sapra, Advocate, for the Appellant. Shri S. Chakraborty, A.R., for the Respondent. ORDER Heard both sides. 2. The Appellant filed this Appeal against order-in-original No. KOL/CUS/PORT/38/10, dated 5-10-2010 whereby ld. Commissioner has ordered for classification of 19003 meters under Heading No. 54076900 of the Customs Tariff Act. This is third round of litigation before this Tribunal and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that the test report given by the CRCL Official was more reliable. We also find in this case that no reasons have been recorded as to why the CRCL test reports have been rejected and moreover, the Textiles Committee Officials have not been made available for cross-examination by the appellants despite a specific request in this regard. Hence, in our view, the CRCL test reports should form the basis for re-determining the classification of the impugned goods. For this purpose, we set aside the impugned order and remand the matter to the lower authority. 10. As regards the imposition of penalty, since we are remanding the matter for fresh determination in regard to classification, penalty for the misdeclaration of description of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection given by the Tribunal in the Remand Order was specific to the effect that the CRCL Test Reports should form the basis for re-determining the classification of the impugned goods and this direction was not followed in the impugned Order. Therefore, the impugned Order in this regard, is not sustainable, hence is set aside. The Commissioner of Customs is directed to re-determine the classification of the impugned goods as per CRCL Test Reports and in view of the findings in the Remand Order dated 11-9-2008 passed by this Tribunal. The issue of penalty also requires re-consideration after re-determination of the classification. The Appellants are, therefore, directed to appear on 10-3-2010 before the Adjudicating Authority along with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory for test in order to ascertain the actual nature, composition and other specifications for the purpose of correct assessment of the fabrics. Had the test report of the CRCL been conclusive and unambiguous, there would not have any question of obtaining any second opinion. Moreover, the above said circular does not bar the Assessing Officers from taking second opinion from any other specialized testing agency of the Government in the event the test report of the CRCL was not conclusive and ambiguous and did not fulfil the statutory criteria. For the said situation the Adjudication Authority should not be compelled to accept an inconclusive and ambiguous report and also should not be prevented from passing a fair judgment on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be visible to the naked eyes. Av GSM and % age composition of the seven samples are given below : Sl. No. Lot No. Colour AV GSM % age of Polymide (nylon) woven fabric % age of polyester woven fabric %age of coating/treating material 1. 2686 Blue/Lighter Shade 173.0 83.8 by wt. - Balance 2. 2686A Brown/Greyish white 191.0 82.1 by wt. - Do 3. 2686B White/White 118.8 87.7 by wt. - Do 4. 2686C Blue 117.8 - 96.8 by wt. Do 5. 2686D Dark Blue 123.0 - 96.6 by wt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than upholstary . In this regard we find that ld. Commr. in his order in para 69(f) has granted the benefit of Notification No. 141/2005 at Sl. No. 53 carrying the similar condition i.e. other than upholstary. Thus the appellant are eligible for the benefit of the notification. Therefore the appeal succeeds so far as the classification and benefit of the notification is concerned. In these circumstances the ld. Commr. is directed to re-quantify the duty liability. We also find that neither side has challenged the enhancement of value. Therefore, the ld. Commr. is also directed to redermine the penalty as per law. Appeal disposed off as above. The ld. Advocate appearing for the appellant brought to our notice that the goods are pending c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
