TaxTMI 
TaxTMI 
1999 (4) TMI 243
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.... case are that the respondents had obtained an advance licence No. 300444, dated 3rd November, 1983 under DEEC scheme, for import of 110.88 MTs of polyester staple fibre and 12.32 MTs of Viscous staple fibre at a total value of Rs. 16.4 lakhs. Against the same the respondents imported in four consignments containing 102.09 MTs of Polyester staple fibre at a CIF value of 16.03 lakhs during the period from March to August,1984. The respondents were under an export obligation for the export of 112 MTs of spun yarn made out of man-made fibre for total FOB value of Rs. 22.04 lakhs to be completed within six months. The respondents exported 105.77 MTs of yarn valued at 24.78 lakhs under cover of 13 shipping bills during the period from March, 198....
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....ster waste content exceeded 50%. On the basis of the total weight of polyester contained it came to 30942.43 kilograms. At that time of import 1% wastage was allowed. The raw material claimed to have been used i.e. 39,536 is valued at Rs. 54,22,876. Duty benefits sought by the customer was to the extent of Rs. 54,22,876. In a show cause notice dated 7-9-1987 issued to the Respondent it was alleged that shipments were allowed under DEEC Scheme provisionally subject to test reports referring composition and virgin of the fibre. The samples were retained from all the consignments tested at BTRA which revealed that yarn was made large proportions of polyester waste fibre. Therefore, it was charged under the show cause notice that there was a mi....
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....mposed a major tax liability on the importer. He, therefore, dropped the show cause notice. Hence the present appeal. 3. It is contended by the Department in the appeal that on the basis of the test report from BTRA the polyester fibre contends in the goods covered under 3 consignments for which adjudications were initiated was 35947 kilograms. The total quantity of the polyester staple fibre imported against the advance licence was 10203 MTs. Such average wastage on the manufacture of polyester yarn from polyester fibre was about 5% the total waste thus could not have been more than 5.10 MTs. Even if all the waste had been used in the 3 export consignments the question as claimed by the respondent the balance of 30.8 MTs of polyest....
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....w material used was synthetic waste or prime fibre and in respect of 11 samples tested, the report is positive in respect of 8 but it was otherwise in respect of 3 consignments. But one has to be careful and very circumspect in the given circumstances before a categorical view is taken on the basis of one test report, particularly when the other Labs have taken a different view. In an identical proceedings M/s. Swadeshi Polytex have stated that when yarn made from polyester blends are stored for more than three years, the test results may become erroneous. M/s. Northern India Textiles Research Association also in the letter date 10-2-1989 has stated that when waste fibre is used in spinning of yarn it is very difficult to ascertain its exac....
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.... foreign exchange remittance has been realised in full. At best one can only have a suspicion that the exporter may have used some waste fibre to spinning the yarn which was exported but this cannot form the basis for an order to penalise the party and impose a major tax liability on the exporter. I would, therefore, hold that this is a fit case for dismissal of the charges levelled against the party." 6. We feel that the Collector in passing the order had considered the arguments of the respondent and the test reports. There is a variation between the wordings of the analyst report and its conclusion. It is also contended before the Collector that the test reports could have been affected as a result of storage of samples for three....