9911796707
TMI Blog2022 (6) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... aring 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 the business of importing 100% polyester bed covers, polyester quilt covers and polyester blankets. The appellants had filed bills of entry declaring the goods as 100% Polyester Bed Cover under CTH 63041930. The said consignment was examined by SIIB, Mundra and it was found there were pieces of rectangular shape of printed fabrics, folded and loosely stitched from two sides. Representative Samples were drawn and forwarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 custom duties and penalty on the importers and personal penalties were imposed on authorised persons of the importer and CHA and other person involved under Section 28(4), Section 24AA, Section 112(a), Section 114A, Section 114AA of Customs Act, 1962. Therefore the present appeals. 02. Heard both sides and perused the records. The Appellants' main contention is that department has not discharged the burden of proof of classifying the impugned goods under chapter 54 for which they have relied upon this CESTAT's order in case of SUN RISE TRA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 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. The report of ATIRA has also been relied upon to prove that the goods are 100% texturised filament yarn in both warp and weft this was also dealt by the bench in detail in the SUNRISE ORDER (supra) relevant portion is reproduced below: "Secondly to decide the correct classification of goods the commissioner held the Subheading 540751 to 540754 cover "other woven fabric, containing 85% or more weight of textured polyester fila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 allowed." Also in recent order, CESTAT held in the matter of ALPHA FOAM PVT. LTD. Vs COMMISSIONER OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 into the detail as the fact that reports were forged does not impact the classification assuming the reports relied upon by the department are the original one as was held in Sunrise Trader case (supra). Lastly personal penalty on the charge of forgery of Textile Committee report, Mumbai on Bajrang Sharma, Amit Momamya and Mahesh Bhanushali, have been imposed mainly on the basis of confessional statements of all three persons involved. We find that forgery is a very serious charge which should be proved by clear and cogent evidence which seems to be missing i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
