TMI Blog2022 (1) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... abric has relied on three textile committee reports reproduced in the impugned order. By perusing the reports dated 28.02.2017 it is clearly mentioned in the column of correct description Classification of the sample that appropriate HS Code could not be provided due to rupture of yarn in weft while untwisting - Even if we accept the corrected report and all other reports they are all inconclusive and instead of relying upon them they should have been sent for retesting which the commissioner categorically denied stating that he does not find any cogent reason to grant resampling and retesting at this stage as samples were tested at two different recognised institutions and expert committee. Secondly to decide the correct classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for the Appellant Shri J. A Patel, Superintendent (Authorized Representative) for the Respondent ORDER The common issue in all the above appeals involved is that the goods imported by the Appellants declaring the same as Polyester Bed Cover are Polyester Bed Cover or Polyester Fabric and whether the same is classifiable under Custom Tariff Heading 63041930 as declared by the Appellant or under Custom Tariff Heading 54075490 as claimed by revenue. 1.1 Brief Facts of the case are that the Appellants are engaged in business of made up articles of textiles and importing 100 % Polyester Bed Cover. The Appellants filed bills of entry declaring the goods as 100% polyester bed cover under CTH 63041930, the goods imported were e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATIRA again could not confirm the actual strength of the warp and weft yarn. 1.3 A Show Cause Notice dated 04.05.2017 issued to the Appellants relying upon the expert committee s opinion the report of textile committee was adjudicated vide order dated 26.03.2018. 1.4 Aggrieved by the order dated 26.03.2018, Appellants filed appeals before CESTAT which vide order dated. 11.07.2019 remanded the matter directing that the case be decided by the adjudicating authority on the basis of statutory definition and Chapter Notes of Section XI of Custom Tariff as well as on HSN Notes not on the general meaning of made ups. The Adjudicating authority vide order dated 29.10.2020 has again confirmed the demands on the same grounds. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esting which the commissioner categorically denied stating that he does not find any cogent reason to grant resampling and retesting at this stage as samples were tested at two different recognised institutions and expert committee. 2.3 The department has relied upon M/s Rudra Vyaparchem vs Commissioner of Customs, Kolkata 2019 (370) E.L.T. 412 (Tri. - Kolkata) as similar goods to Appellant. The above case cannot be relied upon as it is based on the conclusive textile committee reports while in the present case undisputedly inconclusive as to the composition of samples, therefore the order of CESTAT in Rudra Vyaparchen case is distinguishable. 2.4 Secondly to decide the correct classification of goods the commissioner held the Subhead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the authority first adjudicating. In HINDUSTAN FERODO LTD. Vs COLLECTOR OF CENTRAL EXCISE, BOMBAY 1997 (89) E.L.T. 16 (S.C.) : It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t prejudice to above findings, it is a settled legal position that if the goods are not classifiable under the chapter heading proposed by the revenue thereafter even the goods is classified under the chapter heading claimed by the assessee is correct or not, the case of the department will fail. This gets support from the following judgments: PEPSICO HOLDINGS PVT.LTD.- 2019(25) GSTL 271 (Tri.-Mum) 8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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