TMI Blog2022 (6) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... TUSHAR TILAK, JMD TRADING CO, MOHIT SOIN, AJAY HIRALAL VIJ, JAI HANUMAN OVERSEAS, PANKAJ KUMAR KATARIA, PANKAJ KUMAR, SHREE SHYAM INTERNATIONAL AND TUSHAR GUPTA VERSUS C.C. -MUNDRA [ 2022 (1) TMI 468 - CESTAT AHMEDABAD] . HELD THAT:- In the relied upon order in the Textile Committee report, it was mentioned in the column of correct description and Classification of the sample that appropriate HS Code could not be provided due to rupture of yarn in weft while untwisting, the condition of having 85% texturised polyester yarn to classify under CTH 54075490 which is similar in the present set of appeals where warp is 38.4% texturised yarn and weft cannot be ascertained - Since we have already dealt the above reports of Textile Committee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appeal allowed - decided in favor of appellant. - Customs Appeal No.11499 of 2018, 11750 of 2018, 11969 of 2018, 12072 of 2018, 10400 of 2020, 10401 of 2020, 10402 of 2020 and 10549 of 2020 - A/10739-10746/2022 - Dated:- 27-6-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Jatin Mahajan, Advocate for the Appellant Shri G. Kirupanandan, Superintendent (AR) 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 Tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % cannot be ascertained, therefore CTH cannot be decided. Since actual composition of texturised and Non texturised yarn was not forthcoming hence, vide letter sample was drawn and sent to Ahmedabad Textile Research Association (ATIRA) for ascertaining the nature and composition of goods, ATIRA confirmed that the samples are made up of 100% polyester and contains all texturised filament yarn. As the fabric has been peach finished the filament yarn are damaged, hence actual strength of warp and weft yarns used in making the fabric cannot be determined. Show Cause Notices were issued to the Appellants relying upon the Textile Committee Reports and statements of various persons. Later on Show Cause Notices were adjudicated confirming the custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Test reports of textile committee and ATIRA are conclusive and decisive. Also the forgery of textile committee report by the appellants has been proved which discharges the burden on part of revenue. 3.1 Now before moving further we proceed to examine whether the facts of the Sunrise traders order supra can be applied in the present set of appeals or it is distinguishable for the reasons stated by the revenue. In the above relied upon order in the Textile Committee report, it was mentioned in the column of correct description and Classification of the sample that appropriate HS Code could not be provided due to rupture of yarn in weft while untwisting, the condition of having 85% texturised polyester yarn to classify under CTH 54075490 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above facts is department has not discharged their burden of proof and the classification of the department should be rejected as held by Hon ble Supreme Court and CESTAT in various decisions; In case of UIO vs Garware Nylons Ltd. 1996 (87) E.L.T. 12 (S.C.) held: The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he onus of establishing the change of classification is on Revenue and from the records it is apparent that Revenue has been unable to produce sufficient evidence to substantiate the claim. Since we have already dealt the above reports of Textile Committee and ATIRA which are truly identical in nature, we find no reason to change our findings on the basis of the above reports as no new facts have been brought to our attention which warrants such a change. Since the revenue has not been able to discharge their burden of proof hence the classification of goods declared by the appellants cannot be disturbed. 3.2 Now coming to the contention of revenue regarding forgery of the textile committee report, we do not find any reason to go i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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