TMI Blog2015 (12) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the same could not have been allowed by the Adjudicating authority. However, reasoning of Adjudicating authority for rejection, that amendment application was filed after receipt of DRI intelligence, is not correct as appellant has not sought the exact description of goods in the written amendment application dated 10.11.2014. It is accordingly held that request for amendment was not influenced by the intelligence received by DRI. Goods imported by the main appellant are warp cut pile fabrics whereas velvet effect can be obtained both by “uncut pile” as well as “warp cut fabrics”. As per above distinctions available an “uncut pile fabrics” will be classifiable under CTH 58013711 and 58013719 but all such uncut pile fabrics need not be known as velvets. On the other hand warp pile fabrics (including cut velvet) will be classifiable under CTH 58013720. Scientific literature furnished by the appellant do indicate that there are categories of uncut pile fabrics in the market which are also known as velvets (Epingle & Terry Velvet). Corresponding entries under Customs Tariff for Cotton Velvet fabrics are 5801 2710 & 5801 2720 but the word “velvet” has not been mentioned i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est for amendment of bill of entry No.7535365 dated 21.10.2014 was rejected and provisional release of imported goods was allowed by executing a bond for full value of goods, executing a bank guarantee/ cash security equal to Rupees One Crore and on payment of duty of ₹ 68,24,340/-. Under Order-in-Original dated 05.03.2015 Adjudicating authority held that Item No.7 8 of the Bill of Entry No.7135365 is velvet woven fabric classifiable under CTH 58013711 and rejected the classification of CTH 50079090 claimed by the appellant. Adjudicating authority also denied the benefit of Notification No.30/2004-CX dated 09.07.2004 to all the items of Bill of Entry No.7135365 dated 21.10.2014 to determine a total duty liability of ₹ 78,88,149/-. The goods imported were confiscated under sections 111(m) and 119 of the Customs Act, 1962 and allowed redemption on payment of ₹ 13.00 Lakh as (Rs.9 Lakh + ₹ 4 Lakh) as redemption fine under section 125 of the Customs Act, 1962. Besides penalty of ₹ 15 Lakh upon the main appellant and ₹ 20 Lakhs (₹ 13 Lakhs + ₹ 7 Lakhs) upon Shri Aditya Sarda were imposed under section 112(a) and 114AA of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e test reports also support the view of the main appellant. That the imported goods are Cut Pile Velvet fabrics classifiable under CTH 58013720 and not under CTH 58013711 claimed by the Revenue which is meant for Uncut Pile. Learned Advocate relied upon certain technical literature on textiles where uncut pile fabrics are also called as Velvets, like EPINGLE uncut valvet. That elsewhere in the country similar goods imported by the appellant and other importers are classified under CTH 58013720. It was also argued by the learned Advocate that uncut pile velvets like Epingle do exist in technical literature/Textile Dictionary and findings of Adjudicating authority that all categories of velvets will fall under 58013711 is fallacious and should be set aside. That admissibility of Notification No.30/2004-CE and payment CVD was required to be decided in conformity with law and based on case laws under which benefit of Notification No.30/2004-CE was extended to similar imports. He relied upon case laws of Apex Court and Tribunals to argue that no credit on the inputs used in the manufacture of imported goods is taken as the goods are not manufactured in India. In support of his argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce (P) Ltd. has asked for timely amendment of Bill of Entry No.7535365 dated 21.10.2014 before the same was detected by the Revenue? (ii) Whether the goods imported at Sr.No.8 of the B/E dated 21.10.2014 should be classified under CTH 58013720(Cut Pile Fabrics) claimed by Appellant after test or the same should be under CTH 58013711 (Uncut Pile Fabrics) decided by Department? (iii) Whether the benefit of exemption Notification No.30/2004-CE is admissible to the appellant so far as levy of CVD is concerned? (iv) Whether confiscation of goods and imposition of penalties have been correctly adjudicated by the adjudicating authority? 5. Regarding point mentioned at para 4(i) above is concerned there is a dispute between the appellants and the Revenue. It is the case of the Revenue that application for amendment was not made on 03.11.2014 but was received only on 10.11.2014. Appellant on the other hand contend that oral request was made on 03.11.2014 and the statement of the CHA and statement of Shri Aditya Sarda recorded by DRI clearly mention this aspect. It is observed from the case records that an e-mail dated 03.11.2014 was received by the appellant M/s.Chemsilk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seller of the goods to return the same. However, as the amendments sought was not for the correct description of goods, therefore, the same could not have been allowed by the Adjudicating authority. However, reasoning of Adjudicating authority for rejection, that amendment application was filed after receipt of DRI intelligence, is not correct as appellant has not sought the exact description of goods in the written amendment application dated 10.11.2014. It is accordingly held that request for amendment was not influenced by the intelligence received by DRI. 6. So far as the classification of goods imported at Item No.8 of the Bill of Entry are concerned the samples of the goods were drawn and sent to Textiles Committee, Ministry of Textiles, Govt. of India, Mumbai who confirmed the same to be warp cut Pile fabrics. It is the case of the Revenue that all categories of velvet fabrics has to be classified under CTH 58013711 irrespective of the fact whether Pile yarn is cut or uncut. Appelalnt on the other hand argued that warp cut pile velvet has to be classified under CTH 58013720 and there are uncut pile velvets in the market, like Epingle velvet, as per the technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T VELVET is made in this way. 6.3 The World Book Dictionary also describes the word velvet as follows:- Velvet (Vel-vit), n, 1. a cloth with a thick, short soft pile on one side, velvet may be made of Silk, rayon, cotton, nylon or some combination of these. In wearing velvet the warp is pulled over a needle making loops that are cut (cut velvet or uncut (pile velvet). 2. Something like velvet in softness or appearance. 3. The furry skin that covers the growing antless of a deer (Emphasis supplied) 6.4 From the above literature and the test reports of the present consignment it is observed that goods imported by the main appellant are warp cut pile fabrics whereas velvet effect can be obtained both by uncut pile as well as warp cut fabrics . As per above distinctions available an uncut pile fabrics will be classifiable under CTH 58013711 and 58013719 but all such uncut pile fabrics need not be known as velvets. On the other hand warp pile fabrics (including cut velvet) will be classifiable under CTH 58013720. Scientific literature furnished by the appellant do indicate that there are categories of uncut pile fabrics in the market which are also know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rate under the First Schedule Rate under the Second Schedule Condition No. 122 5402.10 5402.41 5402.49 5402.51 5402.59 5402.61 or 5402.69 Nylon filament yarn or polypropylene multifilament yarn of 210 deniers with tolerance of 6 per cent. Nil - 20 20. If no credit under Rule 3 or Rule 11 of the Cenvat CreditRules, 2002, has been taken in respect of the inputs or capital goods used in the manufacture of these goods. 7.2 Observations made by the Honble Apex Court on this issue, while allowing the appeal of M/s.SRF Ltd., are very relevant and are reproduced below:- 6. In the present case, admitted position is that no such Cenvat credit is availed by the appellant. However, the reason for denying the benefit of the aforesaid Notification is that in the case of the appellant, no such credit is admissible under the Cenvat Rules. On this basis, the CEGAT has come to the conclusion that when the credit under the Cenvat Rules is not admissible to the appellant, question of fulfilling the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced or manufactured in India. The words if produced or manufactured in India do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such an article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. For quantification of additional duty in such a case, it has to be imagined that the article imported had been manufactured or produced in India and then to see what amount of Excise duty was leviable thereon. (Emphasis supplied) 8. We are of the opinion that on the facts of these cases, these appeals are squarely covered by the aforesaid judgments. We accordingly hold that appellants were entitled to exemption from payment of CVD in terms of Notification No. 6/2002. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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