TaxTMI 
TaxTMI 
2008 (8) TMI 747
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....ued at Rs. 7,12,488/- at ICD, Ludhiana and filed a Bill of Entry No. 78, dt. 20-11-2000 for its clearance. Out of 17244 yards of fabric, 13428 yards was "Polyester Knitted Fabric" whose classification was claimed under 6002.43 and the remaining was polyester "Woven fabric" whose classification was claimed under 5407.52. The goods were examined on 1st check basis. On examination, representative samples were drawn from "Polyester Knitted Fabric" to ascertain its exact classification and pending the receipt of test report, duty was provisionally assessed under Section 18 of the Customs Act and the goods were released against Provisional Duty Bond & Bank Guarantee. The Chemical Examiner vide test reports dt. 12-1-01, 21-3-01 and 28-3-01 reported one sample to be "printed knitted fabrics" and other three samples to be "knitted cut pile fabrics of polyester". The Chemical Examiner, however, asked for samples with selvedges to enable him to determine whether the fabrics are warp knitted or otherwise. The required samples were sent, but the Chemical Examiner vide report dt. 14-9-01 again reported the samples to be of "Polyester knitted cut pile fabrics" having velvet like surface, but the ....
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....No. 78, dt. 20-11-2000, five varieties are of Polyester Knitted Fabrics and one variety is of Polyester Woven Fabrics. Dispute is only about the classification of polyester knitted fabrics. Out of five varieties, as described in packing list, two varieties are similar and, therefore, four samples were drawn - one from each variety of polyester knitted fabrics and the same had been drawn in presence of the CHA. It is these four samples which were forwarded to CRCL, Delhi for test. The CRCL reported the samples to be polyester pile fabrics. (2) Since the CRCL required samples with selvedges for ascertaining whether the goods are warp knitted or not, duplicate samples were sent and it is in respect of these samples that CRCL submitted its report dt. 14-9-01 in which it was reported once again that the same are cut pile fabrics. Thus samples had been taken from each variety of the disputed fabrics in presence of the importer's CHA and on test the same were found to be cut pile fabrics of polyester. (3) There had been no violation of the principles of natural justice, as the importer was a party to the complete process of test and re....
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....rawn from knitted fabrics - one from each variety. These four samples were forwarded to the Chemical Examiner, CRCL, New Delhi vide letter No. CUS/CFS-CONCOR/104/2000/03, dt. 2-12-2000. There is an endorsement signed by the Respondent-importers' CHA on this letter confirming that the samples were drawn in his presence. Therefore, there is no irregularity in drawing of the samples, which obviously had been ordered by the Deputy Commissioner as he on the face of the Bill of Entry had ordered provisional assessment pending test result. There are three reports of the Chemical Examiner - one report No. CL 2443 Imp in respect of first sample, second report Nos. CL 2913 & 2914 Imp in respect of second and third sample and third report No. CL 2915 Imp in respect of fourth sample. Report in respect of 1st sample CL 2443 Imp reports the sample to be of grey colour knitted polyester fabrics with 66.3% polyester, 18.8% mettalised yarn and balance Nylon yarn. This simple obviously is not of pile fabrics, as there is no such conclusion in the report. The reports in respect of the other three samples - CL 2913, 2914 & 2915 Imp report the sample to be of knitted cut pile fabrics of polyester. But ....
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....re not even show caused on the issue of enhancement of assessable value and the basis of enhancement of assessable value was never disclosed to them, the Joint Commissioner's order enhancing the assessable value of the fabrics held to be "knitted polyester pile fabrics", is wrong and not sustainable and the same was rightly set aside by the Commissioner of Customs (Appeals). 5. However, the fabrics which were declared in the Bill of Entry as "knitted polyester fabrics" classifiable under sub-heading 6002.43, which on test, were found to be "knitted pile fabrics of polyester" classifiable under sub-heading 6001.92, would be liable for confiscation under Section 111(m) of the Customs Act for misdeclaration with regard to their description and even if the same are not physically available for confiscation as the same have been released against P.D. Bond, the same would be liable for redemption fine in view of Hon'ble Supreme Court's judgment in the case of Weston Components Ltd. v. Commissioner of Customs, Delhi (supra). Besides this, the Respondents (Importer) would also be liable for penalty under Section 112(a) of the Customs Act. 6. In view of our above findings wh....