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TMI Blog2023 (10) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT, Kolkata vide Final Order No.FO/A/75390/2014 dated 26.04.2014. 2. While passing the Final Order No.FO/A/75390/2014 dated 26.04.2014, this Tribunal has ordered for retesting of the remnant samples at CRCL, New Delhi, after following proper procedure and a copy of the Report is to be supplied to the Appellant before deciding this case. As directed by this Tribunal, the remnant samples were retested at CRCL, New Delhi and a copy of the Report was given to the Appellant. 3. Briefly stated facts of the case are that the Appellant imported the goods vide the said four Bills of Entry declaring the same as Cotton Polyester Fabrics classifiable under Customs Tariff Heading (CTH) 52113190. On examination, the department observed that the goods imported were Blue Coloured fabrics of 'Denim' classifiable under CTH 52114200. Samples were drawn in the presence of DRI officers and sent for testing to Customs Laboratory, Kolkata and Textile Committee Laboratory, Mumbai. The Reports received from the Laboratories indicated that the samples had the characteristics of Denim fabrics and the fabrics were three thread twill weave woven fabric and in the construction of the fabric, blue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in the Test Report there is no finding that warp yarn is pre-dominant and the fabric is warp faced. The Test report says that the fabric is of two colours, blue and white, which cannot be treated as 'Denim' because Denim is made of one colour fabric where darker side is used in warp and lighter side in weft or weft should be of grey color. (v) The samples sent to CRCL Delhi were not representative samples of all the four Bills of entry. Hence, adjudication of all consignments cannot be done based on these test reports. (vi) Therefore, the Appellant contended that the fabrics cannot be treated as Denim and it needs to be classified under Customs Tariff Heading 5211 3190, as declared by them. (vii) There is no material in the show cause notice to show that there was an assessment done in respect of all the four Bills of Entry. In the absence of any assessment so made, the question of short levy under section 28 would not arise. In support of this contention, the Appellant relied on the decision of this Tribunal in the case of Jaju Petrochemicals. 5. The Ld. A.R submitted that the CRCL Test Report clearly states that the goods imported has the characteristics of Deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on appeal before this tribunal. When the classification dispute attains its finality, the original bills assessed provisionally will be assessed finally by the proper officer. Thus, we observe that the process of finalization will be done by the proper officer as and when the classification dispute attains its finality. During the course of this process, Notice can be issued for reclassification demanding duty as per the proposed new classification. The demand will be finally confirmed only when the classification dispute attains its finality. Thus, we find there is no infirmity in the demand issued under Section 28 of the Customs Act, 1962 . Accordingly, we hold that the objection raised by the Appellant on this count is not sustainable. 8. We observe that the issue involved in the present appeal is classification of the imported fabrics. The Appellant has declared the imported goods as Cotton Polyester Fabrics classifiable under Customs Tariff Heading (CTH) 52113190. On examination, the department observed that the goods imported were Blue Colored fabrics of 'Denim' classifiable under CTH 52114200. Samples were drawn in the presence of DRI officers and sent for testin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Report also indicates that the weft yarns contain elastomeric yarns. As per the Chapter Note, there cannot be any other combination of yarns in the weft yarn. Hence, the condition regarding the weft yarn available in the Chapter Note 52 is not satisfied. (v) Regarding combination of material in the fabric, 79.2% is cotton yarn in the warp and 16.8% polyester yarn in the weft. Other than these 96% yarns, the remaining 4% of the composition constitute elastomeric yarns in the weft. 12. From the above comparison of the Note to Chapter 52 and Test Report, we observe that the colour of the weft yarn does not satisfy the definition of Denim as mentioned in the Chapter Note 52. The composition of elastomeric material in the weft yarn indicates that the Test Report does not fully satisfy all the conditions required to classify the fabrics as a Denim fabrics. The Test Report only indicates that the fabric has the characteristics of Denim fabrics. The Test Report did not categorically say that the fabric is a Denim Fabric. Fabrics having the characteristics of Denim fabric cannot be equated with the Denim fabric itself, if it does not otherwise satisfy the requirements of Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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