2003 (5) TMI 275

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....ustoms, Gr. III (hereinafter referred as the lower authority) vide Order No. 02/2002, dated 12-9-2002. 2. The brief facts of the case are that the appellants, imported one consignment each of goods, declared as non-fes woven polyester fabric width 44" and claimed classification under sub-heading No. 5407.61, duty @ 25% + C.V. 8% + Additional C.V. 8% + 0.05% Cess. The consignments were assessed to duty provisionally, against test bonds executed by the appellants. The goods were allowed clearance on payment of assessed duty after drawal of sample for chemical test. The samples were tested by the Custom House laboratory and found to be woven fabric of textured and non-textured multivalent yarn of polyester and the textured filament yar....

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....nted, wherein Mr. Sujay N. Kantawala, Advocate, appeared on behalf of both the appellants. The contentions made in the stay application and Appeal Memo were reiterated by the appellants. Further it was submitted that no notice was received before the ex parte order was passed. In view of the decision reported in 2002 (144) E.L.T. 97, it should be in the fitness of things to remand the case, for a fresh decision on merits. 5. I have gone through the records of both the cases and submissions of the appellant/Consultant carefully. Since both these appeals relate to the same issue, appeals are taken up for disposal by issuance of a common order. 6. The issue in the present case lies in a small compass, whether demand for duty co....

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....e Laboratory, the request for re-testing was rejected. The above approach by the lower authority is not correct in law and contrary to the existing provisions and practice. The Appraising Manual clearly provides for re-test of the sample, in case of dispute or where the results of chemical analysis are contested by the importer. That is why, sufficient measures are laid down for storage/preservation of remnant samples. The relevant extracts of the Appraising Manual which is based on Board's Instruction are reproduced as under : "(1) In cases where the test results do not agree with the declarations of the parties and parties have a right of appeal against the order based on the test result, the remnant should be retained upto the ex....