TMI Blog2004 (10) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... rly mentioned that the impugned goods were non-texturised fabrics; that the Commissioner of Customs, under both the impugned Orders has classified the impugned goods under sub-heading 5407 69 00 of the Customs Tariff as texturised fabrics on the basis of Test Reports received from Textile Committee, Mumbai and CRCL, New Delhi; that the Commissioner has also disallowed their request to allow clearances of the goods against DFRCs on the ground that DFRCs produced by them are not having complete details about the quality, technical characters and specifications of the inputs used in the export goods. The learned Advocate submitted that the test reports relied upon by the Department are of doubtful nature because in all the three tests reports there is a wide variation; that Textile Committee had opined that the constituent yarn as 100% texturised yarn whereas the first CRCL Report opined that the yarn contained texturised multifilament yarn of 63.2% and retest report stated that it contained textured filament yarn to the extent of 62%; that there cannot be such wide variation amongst the three samples when they were drawn from the same consignment; that on the other hand, the supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had intentionally tried to evade proper payment of customs duty" and that the declaration made on the basis of the belief entertained by the appellant "cannot be said to be a misdeclaration contemplated by Section 111(m) of the Customs Act." Reliance has also been placed on the following decisions : (i) Jay Kay Exports v. C.C. (Port), Calcutta, 2003 (161) E.L.T. 443 (T) (ii) Jay Kay Exports Industries v. C.C. (Port), Kolkata, 2004 (163) E.L.T. 359 (T) wherein the Tribunal has held that the finalisation of the Tariff Heading under which the goods would fall is the ultimate job of the Customs authorities and if the Appellants have claimed wrong classification according to his understanding, mens rea cannot be attributed on his part. 4.1 The learned Advocate mentioned that the Adjudicating Authority has disallowed the clearance of goods under DFRC Scheme on the ground that technical characteristics, quality and specification should be declared in the shipping bill and that the licensing authority, while issuing DFRC, shall mention the technical characteristics, quality and specification in respect of such inputs; that the Commissioner has relied on the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order and submitted that Notification No. 46/2002-Cus., dated 22-4-2002 provided that DFRCs Licence should contain the standard input-output norms, number, description and value of the resultant product exported on the reverse, the shipping bill and date, FOB value of the resultant product and the description, value and quantity of the materials which are allowed to be imported; that proviso to Notification further mentions that in respect of resultant products specified in the sensitive list contained in Para 4.31 of the Handbook of Procedure (Volume 1) of the import and Export Policy, the materials permitted in the licence shall be of the same quality, technical characteristics and specifications as the materials in the said resultant product; that the condition of the Notification has to be complied with before the benefit of the same can be availed of by the Appellants; that the condition of the Notifications applies also to the transferee of DFRCs licence. He relied upon the decision in the case of Raj Exports v. National Aluminium Company Ltd. [1996 (87) E.L.T. 349] and order of the Supreme Court on Appeal filed by M/s. Raj Exports as reported in 2002 (141) E.L.T. A282 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrectly under sub-heading 5407 69 00; that as the goods have been mis-declared in the Bills of Entry, they are liable to be confiscated and penalty is to be imposed on the appellants. 7. We have considered the submissions of both the sides. The Revenue has clearly established that polyester fabrics imported by the Appellants does not contain 85% or more by weight of non-texturised polyester filament by getting the test report from CRCL and Textile Committee; that once the non-texturised polyester filament is less than 85% the polyester fabrics imported by the Appellants is not classifiable under sub-heading 5407 61 20. The mere fact that there were wide variations between the test results arrived at by the Textile Committee and CRCL will not make any difference as much as there is nothing on record to show that the impugned goods contain 85% or more by weight of non-texturised polyester filament. The appellants have not brought on record any test report showing that the impugned goods contain non-texturised polyester filament 85% or more by weight. They have only referred to the Test Certificate given by the foreign supplier. The perusal of the said Test Certificate reveals that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied the clearance of the imported goods against these DFRCs licences on the ground that all the technical specifications such as type of fabrics, type of weave, etc. are not mentioned in DFRC licences. DFRC licence is issued by the Director General of Foreign Trade. Once the licence has been issued by the DGFT on the basis of export of goods, it is not open to the Revenue to disallow the clearance of imported goods against these licences on the ground that these licences do not contain some further details. As long as the licence has been validly issued by the DGFT after ascertaining the export of goods, the Customs have to allow the clearance of the specified goods against these licences. As observed by us earlier the Revenue has not denied that goods imported are polyester fabrics GSM of which is 200 +/- 10%. We also observe that the Board in Circular No. 33/2000-Cus., dated 2-5-2000 has explained the salient features of DFRCs licence. One of the salient feature is that "DFRCs licence shall permit import of inputs having same quality, technical characteristics and specifications which have been used in the export product and which are specified in the Shipping Bills." In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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