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2026 (4) TMI 540
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.... 287.9 gm 60.0% 2. 193.7 285.6 gm 63.5% 1.1 As per the sample test report(s), texturized yarn percentage was less than 85%, hence, classification declared by the importer was not found to be correct. The Bill of entry was provisionally assessed on 10.02.2004 and goods were allowed to be cleared. Later on, the goods were assessed finally by the assessing officer vide order dated 09.03.2007 wherein, he denied benefit of Notification No.137/2000-Cus dated 19.10.2000 and confirmed differential duty of Rs.71,57,744/-. The respondent approached the Commissioner (Appeals) who vide order dated 20.03.2008 set aside final assessment of goods by observing that copy of test report not supplied to party either before or after the adjudication and that, the order of finalisation does not spell out why benefit of Notification No.137/2000-Cus. dated 19.10.2000 has been denied to appellant. He therefore, remanded the case back for passing a speaking order after following the principles of natural Justice. Accordingly, Deputy Commissioner issued a notice dated 18.12.2008 mentioning the allegations against the respondent and supplied relied upon documents and test reports alongwi....
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....DTA is not before the assessing officer. He has wrongly held in para 10 of his order that the unit is entitled to exemption from duty so long as goods are used for authorised operations under LOP which is manufacture of readymade garments duly stitched. The investigation has clearly brought out that the unit did not have any manufacturing facilities and so, they did not use the imported goods for manufacture of readymade garments. * Learned Commissioner (Appeals) has failed to appreciate that this is a case of unauthorised import of goods under CTH 54075290 to evade customs duty as the declared CTH covers goods "other woven fabrics containing 85% or more by weight of textured polyester filaments" attracting lower rate of duty whereas imported goods having less than 85% textured Polyester filaments are correctly covered under CTH 54078290. The imported goods were diverted in DTA by wrongly classifying them under CTH No.631090 without any processing. The issue therefore is of wrong classification and under valuation of goods imported by the respondent. * The Commissioner (Appeals) has heavily relied on the wordings "Fants & Cloths" in the LOP issued to the Responden....
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....CRCL Kandla report which was conclusive, unambiguous and covered all the aspects. Learned Commissioner (Appeals) ignored the fact that respondent requested for retesting of samples without rejecting or even contesting the earlier test report of CRCL Kandla and such a request came when they fully knew that no samples were available for testing and the imported goods had been disposed of. The representative of the unit as well as the appraiser (who finalised provisional assessment and later joined the respondent unit as their employee) had searched/ inspected the files and they themselves got satisfied that no samples were sent to textile committee for testing, which facts have completely been ignored by the Commissioner (Appeals). * The assessment has correctly been finalised by the department and the same is just, reasonable & legal. The goods imported on 22.09.2003 were not requested for appraisement till 10.02.2004. They got the goods provisionally assessed by a newly appointed appraiser who was not well versed with all the facts. Later, they sold almost entire quantity of imported goods in DTA within few days i.e. on 13.02.2004 & 16.02.2004, by mis-declaring classificat....
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....mmittee for testing. The respondent also had no doubt that no such samples were sent to Textile committee. He emphasises that the unit did not have any manufacturing facility for using imported synthetic fabric and the same was diverted in DTA within 5-6 days of clearance, as admitted by the Directors during detailed investigation conducted by DRI. He therefore submits that the Appellate Commissioner has wrongly dropped the demand on the respondent by citing unsubstantiated facts sand prays for allowing revenue's appeal. 4. Countering the arguments, Learned Advocate submits that the respondent was granted LOP initially in the name of M/s. Nidhee Exports for setting up of manufacturing unit in Kandla, SEZ. It was later on changed to M/s. Om Siddh Vinayak Impex Pvt. Ltd. His main emphasis is that the goods imported in Sept, 2003, were assessed provisionally in February, 2004 even though department was in possession of the test report from CRCL Kandla which shows that the department was doubting the said test report. He emphasises that the Assessing officer had sent samples to Textile committee, Mumbai because he was apprehensive about quality/ nature of the material. The provision....
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....e dated 18.12.2008 issued for finalisation of provisional assessment. 4.3 Learned Advocate pleads that the grounds taken by Revenue are beyond the scope of show cause notice. He relies on the decision of Hon'ble Supreme Court in the case of Commissioner of Customs, Mumbai Vs. Toyo Engineering India Ltd. reported at 2006 (201) ELT 513 (SC) wherein, it is held that submissions which revenue neither raised before the Adjudicating Authority nor before the first Appellate Authority, cannot be allowed to be raised for the first time in second appeal before Tribunal. He also relies on decision of Hon'ble Apex Court in Precision Rubber Industries (P) Ltd. reported at 2016 (334) ELT 577(SC) which held that making a new case after rejecting two sub headings proposed in the show cause notice, is not allowed. To buttress his arguments, he refers to the decision of CESTAT Delhi, in the case of Rajasthan Fasteners Pvt. Ltd. reported at 2013 (292) ELT 466 and decision of Hon'ble Telangana High Court in the case of Conneqt Business Solution Ltd reported at 2025 (392) ELT 334 (Telangana) wherein it is held that revenue could not be permitted to make out a new case on facts before CESTAT in absen....
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....ixed mainly or solely with cotton". It is therefore clear that classification of goods sought for by the respondent in the Bill of Entry was not correct. The Learned Commissioner (Appeals) has not elaborated why the test report is inadequate. On facts, we are in agreement with the finding of the Deputy Commissioner that goods having texturized yarn in the range of 60-63.5% are correctly classifiable under CTH 54078290. On the basis of a remark on the B/E by the assessing officer while ordering for provisional assessment of goods, Learned Commissioner (Appeals) has held that the test reports have been doubted by the assessing officer as well respondent. Learned Advocate also makes the above remark of the assessing officer his basis for assertion that the department also doubted the CRCL Kandla test report. We find that the records nowhere, show that the test report was discarded by the assessing officer. There is also no correspondence from the respondent raising doubts about the said test reports till February 2014 when they, for the first time, requested for retesting of sample knowing well that remnant samples were not available. The request for retesting of samples received afte....
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....dla SEZ, which permitted procurement of certain raw materials and manufacture and export of finished goods. There is a dispute in LOP issued to the respondent as to which of the raw materials were permitted to be procured by them. It is the claim of the department that under LOP, respondent was permitted to reprocess old and used clothes including fants etc. and they did not have any machinery and other infrastructure for manufacture of readymade garments from fabrics. The respondent on the other hand claims that the department is not correctly interpreting LOP which permitted them to manufacture readymade garments for which they had imported fabrics. The LOP dated 29.01.2002 issued to the respondent is reproduced below: 5.6 From LOP, we observe that both raw materials and the finished goods have been mentioned in the same column. Therefore, office of the Development Commissioner can only clearly intimate as to which of the raw materials were permitted to be procured against this LOP. We therefore, remit the matter to the Deputy Commissioner, Kandla SEZ to seek opinion from the office of the Development Commissioner and if, it comes out that the respondent were permitted to impo....
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....e appeal is allowed by way of remand as above. Ordered as above. Matter remanded. (Pronounced in the open court on 07.04.2026) ============= Document 1 14 20 0 3 Report. The sample preket contains two samples Each of the two samples is in The pormed res proced waren fabric made out of different colour Yariy. Wamp sido in Barn case is made of texword Polyester film and young and welt side in each Case is made of man texunited Pilycolisfilament yarns. 45m 40/mês. Texunison ymy O 192.8 287.9 80m ( 1) 60.0% 193.7 285.6 Som (2) 63.5% Sealed remnant returned. Dioni 16/10/03 Altra (39312) 8727220) 16-10-03) 12 - 06 - 07 सहायक रसायन परीकà¥à¤·à¤• सीमा शà¥à¤²à¥à¤•, कांडका , Cua & Con. Ty Lan, Document 2 29 CERTIFIED TRUE COPY B.A.LL. B. YONIHS Advocat. Gr Bombay wAhtra State Regn No. 503 NOTARY OFFICE OF THE DEVELOPMENT COMMISSIONER KANDLA SPECIAL ECONOMIC ZONE MINISTRY OF COMMERCE & INDUSTRY DEPARTMENT OF COMMERCE GANDHIDHAM-KUTCH PIN: 370 230 ....