TaxTMI 
TaxTMI 
2022 (11) TMI 867
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....is textured yarn but the weft cannot be ascertained and expressed opinion that 39.8% is textured yarn and remaining 60.2% cannot be ascertained. With regard to query about the correct description and classification, it was stated that it could not be ascertained as to whether the weft yarn is filament yarn or staple spun Yarn, hence HS code could not be provided. The revenue also sent the samples to Ahmedabad Textiles Industry‟s Research Association (ATIRA) to ascertain whether the said fabrics are made up of filament yarn/ staple yarn and to ascertain the other components of the fabric which the textiles Committee was unable to ascertain. ATIRA again could not confirm the actual strength of the warp and weft yarn. 1.2 A Show Cause Notice dated 26.10.2017 was issued to the Appellant proposing classification of the imported goods as " Polyester Woven Fabrics" under Chapter 54075490 of the Customs Tariff Act 1975 against the declaration as " Polyester Bed Cover" under CTH 63041990 and differential duty of customs apart from confiscation and imposition of penalty. The show cause notice was adjudicated vide impugned order dated 02.07.2018. The Adjudicating authority has confirme....
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....ugned goods i.e. "bed cover‟ are closed from three sides with two sides machine stitched. Hence, a plain reading of Note 7 in general and (f) in particular makes it obvious that the goods so presented for assessment can only be treated as "made-ups" irrespective of the quality of stitching. Unless an article of textiles falls under the meaning of Note 7, it will not be treated as made up. This facts is supported by CBEC circular No. 557/53/2000 dated 03.11.2000 which clarified that Dhoti/Sarees are not classified as made up because they are not covered under the meaning of made-up under Sections Notes on textile. This also implies that if goods are covered under the meaning of made-up as per note 7, they will be treated as made-up irrespective of their use. 2.3 He also submits that on the identical issue in case of other importers this Hon‟ble bench vide Final Order No. A/10013-10026/2022 dated 11.01.2022 and A/10046-10047 dated 25.01.2022 has been pleased to allow the appeals. 03. On the other hand, Shri Vinod Lukose, learned Superintendent (AR) reiterates the findings of impugned order. 04. Heard both sides. On careful consideration of the submissions made by both ....
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....esting 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, containing 85% or more weight of textured polyester filaments. For that the authority has relied upon report of ATIRA stating the fabric is made entirely of texturised yarn to be covered under the above heading the fabric should contain 85% or more weight of texturised polyester filaments, now as per the report of ATIRA as well as report of Textile committee, that could not be ascertained as the weft ruptured, therefore the basic condition of 85 % percent could not be fulfilled and could not be ascertained whether weft is tex....
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....Commissioner (Appeals) has in his order observed that the technical basis of the Dy. Chief Chemist is quite clear whereas the report itself shows that the office of Chemical Examiner is not clear about the classification and needs further clarification before arriving at final decision. It is seen that the onus of establishing the change of classification is on Revenue and from the records it is apparent that Revenue has been unable to produce sufficient evidence to substantiate the claim." The facts in the above judgment of Cestat is similar to the Appellant's case as in the above case also there is an inconclusive report which has been relied upon as in the appellant's case and the Cestat was pleased to allow the Assessee's appeal. 2.5 Without prejudice to above 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 ....