2022 (1) TMI 1080

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....ese appeals may be kept in abeyance. Subsequently, vide letter dated 19.01.2022 he informed that in fact the proprietor's father expired. Therefore, the order on these appeals may be passed. 3. The other appeals from the bunch have been disposed of vide this Tribunal's Final Order No A/10013-10026/2022 dated 11.01.2022. The common issue involved in all the appeals of the bunch as well as in the present appeals is of classification of goods declared by the appellant as Bed Cover and the revenue's claim is that imported goods is "polyester woven fabric" classifiable under CTH 54075490.This issue has been decided in other appeals of the bunch as per the following order. "2. Heard both sides and perused the records. The departme....

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....e does not find any cogent reason to grant resampling and retesting at this stage as samples were tested at two different recognised institutions and expert committee. 2.3 The department has relied upon M/s Rudra Vyaparchem vs Commissioner of Customs, Kolkata 2019 (370) E.L.T. 412 (Tri. - Kolkata) as similar goods to Appellant. The above case cannot be relied upon as it is based on the conclusive textile committee reports while in the present case undisputedly inconclusive as to the composition of samples, therefore the order of CESTAT in Rudra Vyaparchen case is distinguishable. 2.4 Secondly to decide the correct classification of goods the commissioner held the Subheading 540751 to 540754 cover "other woven fabric, conta....

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....that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the authority first adjudicating." In HINDUSTAN FERODO LTD. Vs COLLECTOR OF CENTRAL EXCISE, BOMBAY 1997 (89) E.L.T. 16 (S.C.) : "It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed." Also in recent order ....

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....ove findings, it is a settled legal position that if the goods are not classifiable under the chapter heading proposed by the revenue thereafter even the goods is classified under the chapter heading claimed by the assessee is correct or not, the case of the department will fail. This gets support from the following judgments: • PEPSICO HOLDINGS PVT.LTD.- 2019(25) GSTL 271 (Tri.-Mum) "8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the la....