2009 (1) TMI 285

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.... provisional basis subject to suitable conditions. The facts necessary for the purpose of this order are that the petitioner, which is engaged in the trade of textile fabric, imported a consignment of polyester fabric from China. These goods were declared as non texturized polyester lining fabric falling under the chapter heading 5407 6190 in the Bill of Entry furnished by it on 22-8-2008; customs duty was paid on such basis. The Special Investigation Branch of the Customs, however, stopped the goods on 28-8-2008 and later examined them thoroughly. The petitioner, sought for release of the goods. Two samples of the imported consignment were sent for testing to the Sriram Institute for Industrial Research on 12-9-2008. The petitioner was ....

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....tion of 9 samples are heavy fabrics being classifiable in CTH 58013500; light fabrics being classifiable into two parts, one is 54076900 and the other 54076190. It is contended that this difference in opinion has resulted in a situation whereby according to the first report, the duty payable would be Rs. 56,76,841/- whereas the Textile Committee's opinion would result in liability to the tune of Rs. 78,24,728/-. 5. The respondent resists the petition and contend that the condition imposed by it for release of the goods on provisional basis is neither arbitrary nor mala fide. It justifies the demand for higher amounts and submits that the Textile Committee's report is based on 9 samples whereas Sri Ram Institute for Industrial Research re....

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....cator about the correctness of the opinion. Ultimately, the adjudicating authority is to decide as to what is the correct classification to be adopted by the petitioner who imported them. It is nobody's contention that the adjudicating authority i.e. the Commissioner is technically equipped authority in such matters. In such a situation, it would be unwise and imprudent for the authorities to prefer one view over the other and draw a conclusion that the number of samples is an indication of acceptability of the report. 9. In these circumstances, the most appropriate order would be to direct the respondents to draw the fresh samples and forward them to a third Institution, for testing. Learned counsel agree that the third Institution can ....