TaxTMI 
TaxTMI 
2010 (9) TMI 386
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....hereafter, the Department has drawn samples and sent them for testing to CRCL, Textile Committee, (Ministry of Textile, Government of India) and to Government Central Textile Institute (GCTI). (c) As per report of CRCL dated 19-8-2003, the samples were composed wholly of textile multi filament yarn polyester. The test report suggested that end-use of samples should be ascertained by executive check. For ascertaining whether the samples contained any hazardous dyes, it was also recommended that the sample should be forwarded to Textile Committee, New Delhi for their opinion. The report of the CRCL was signed by Shri M.D. Mondal, Chemical Examiner. (d) The test report dated 19-8-03 of the Textile Committee reads as follows : 1. Identification of fibre IS 667:1981 Wrap & Weft Polyester 2. Percentage Composition Polyester 100 3. Whether staple/filament yarn Warp & Weft Filament yarn % Filament yarn 100 4. Whether texturised Non-texturised Warp & weft Non-texturised % Non-texturised yarn 100 ....
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....the parameters for testing". Under these circumstances, the second report deserves to be ignored. Though the test was not personally done by Quality Assurance Officer but only by technicians, no internal documents prepared by said technician were produced. Retest has been done even without the request for retesting from Customs authorities which is not permissible. The order of the Commissioner also refers to certain correspondence between the Member Secretary, Textile Committee, Mumbai and the Chief Commissioner of Customs, Mumbai. The said communication has not been made available. The second report of Textile Committee is, thus, clearly an influenced report and based on extraneous consideration. The Commissioner's reasoning given for rejecting the first report of Textile Committee and accepting the second report of Textile Committee is erroneous. 4.3 He also submits that the report of GCTI, Kanpur which was in their favour has not been controverted. 4.5 Further, the Explanatory Notes to HSN does not prescribe any methodology for ascertaining as to whether the fabric is made of non-texturised filament yarn or texturised yarn. It does not prescribe any methodology for t....
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....ification by adopting the report of CRCL and the second report of the Textile Committee. 5.6 Taking us through the cross-examinations of Venkitachalam, Assistant Director and that Smt. Anita Hazra, he submits that the first report of Textile Committee went on mis-conception that mingled and tangled yarn was not considered as texturised yarn as it was felt that the said yarn could not be texturised. Whereas subsequent to visit by a team of officers to several texturising units in Gurajart, the technological developments came to the notice and therefore, the retest was conducted suo motu and the first report was cancelled and the second report was sent to the Department. 5.7 He also submits that subsequent to visit by a team of officials of Textile Committee, revised guidelines have been issued on matters relating to testing of yarn as to whether the same is textured yarn or otherwise. 5.8 Taking us through to the Explanatory Notes to HSN of textured yarn relating to sub-heading 5402.31 to 5402.39, he claims that advance testing is required to distinguish the textured yarn from non-textured yarn and the second report of Textile Committee is following such method. T....
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.... and warmth of touch. Textured yarns may be distinguished from non-textured (flat) filament yarns by the presence of special twist characteristics, small loops or reduced parallel orientation of the filaments in the yarn." 6.2 From a close reading of the same, it is noticed that the said notes contain distinguishing features between textured yarn or non-textured yarn. We do not agree with the contentions of the learned Jt. CDR that the said notes prescribed any method for testing the samples for determining whether the yarn is textured or not. 7. The submission of the learned Jt. CDR that the Textile Committee was a nominated agency for testing hazardous dyes and therefore, the samples sent to the said laboratory is understandable. Still, there is no explanation forthcoming as to why the samples were also sent to GCTL, Kanpur by the officers. The submission that the samples were sent to Kanpur Laboratory on the request of the party is not substantiated. Having chosen to send the samples to three different laboratories for testing, valid reason should be adduced for rejecting any report of the laboratories which is in favour of the party. 8.1 The Textile C....
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.... the same was being done by technicians. When the first report is to be discarded, it has not been shown that the second test was done by any other of higher rank than the one who conducted on first occasion or by team of officers. The endorsement of the Quality Assurance Officer, the Director (Laboratory) of the second report cannot automatically invalidate the first report. Further, it is noticed that the first report of the Textile Committee the samples as 100% non-textured and the second report is diametrically opposite stating that the sample as 100% textured. Such a view in this particular case throws serious doubt about medical in which the test has been done by the Textile Committee. Notwithstanding the eminent status of the Textile Committee in matters relating to textile and textile articles, in the present case, the second report given by them do not instil our confidence in us. 8.3 Having held that the relied portions of HSN Notes have not prescribed methods for determining whether yarn is textured or non-textured yarn, we do not find any valid reason to disregard the report of GCTL which is in favour of the assessee. We have not been shown any reliable evidence....