TaxTMI 
TaxTMI 
2026 (8) TMI 1758
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....uring the relevant period, imported consignments declared as "Mixed Lot of Polyester Warp Knitted Fabrics" of Chinese origin from overseas suppliers, namely, M/s. Dauer International Ltd., U.K. and M/s. LCL Group Co. Ltd., H.K. The appellant filed five (05) Bills of Entry for clearance of the aforesaid imported goods, having a cumulative assessable value of Rs.3,38,71,839/-, by classifying the goods under Customs Tariff Item No. 6005 9000 of the First Schedule to the Customs Tariff Act, 1975 and simultaneously claiming the benefit of concessional Basic Customs Duty at the rate of 10% under Serial No. 166 of Notification No. 82/2017-Customs dated 27.10.2017. On the basis of such self-assessment, Customs duty amounting to Rs.56,05,789/- was discharged and the goods covered under the said Bills of Entry were cleared for home consumption. The details of the impugned Bills of Entry are provided in the table given below: - Sl. No. Bill of Entry No. Bill of Entry Date COO Supplier Declared Item Description Assessable Value (in Rs.) 1 6374269 14.05.2018 CN Dauer International Ltd., U.K. Mixed lot of Polyester Warp Knitted Fabric 76,96,458 2 6....
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.... - Of cotton: 6005 21 00 -- Unbleached or bleached kg. 25% 6005 22 00 -- Dyed kg. 25% 6005 23 00 -- Of yarns of different colours kg. 25% 6005 24 00 -- Printed kg. 25% - Of synthetic fibres: 6005 35 00 -- Fabrics specified in Subheading Note 1 to this Chapter kg. 20% 6005 36 00 -- Other, unbleached or bleached kg. 20% 6005 37 00 -- Other, dyed kg. 20% 6005 38 00 -- Other, of yarns of different colours kg. 20% 6005 39 00 -- Other, printed kg. 20% - Of artificial fibres: 6005 41 00 -- Unbleached or bleached kg. 20% 6005 42 00 -- Dyed kg. 20% 6005 43 00 -- Of yarns of different colours kg. 20% 6005 44 00 -- Printed kg. 20% 6005 90 00 - Other kg. 10% 5.1. Chapter Heading 6005 itself is divided into four principal groups represented by the single-dash entries in the Harmonised System, namely: Level Article / Group Relevant Tariff Items ....
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....ms Act, 1962. 7.1. The above Notice was adjudicated vide the Order-in-Original No. KOL/CUS/JC/PORT/ PCA/30/2021 dated 31.05.2021, whereby the adjudicating authority confirmed the differential duty demand of Rs.39,12,198/- along with applicable interest, by rejecting the classification claimed by the appellant under Customs Tariff Item No. 6005 9000 and reclassifying the imported goods under Customs Tariff Item Nos. 6005 3500 to 6006 3900 and denying the benefit of Notification No. 82/2017-Customs dated 27.10.2017 (Sl. No. 166) as claimed by the appellant. The ld. adjudicating authority also imposed a penalty equal to the differential duty demanded above, under Section 114A of the Customs Act, 1962 along with a penalty of Rs.5,00,000/- under Section 114AA ibid. 7.2. The appellant thereafter preferred an appeal before the Commissioner of Customs (Appeals), Kolkata, who, vide the impugned Order-in-Appeal No. KOL/CUS(PORT)/KS/291/2023 dated 21.04.2023, upheld the findings recorded in the Order-in-Original dated 31.05.2021 and rejected the appeal. 7.3. Aggrieved thereby, the present appeal has been filed before this Tribunal. 8. During the course of arguments, the Ld. Counse....
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....nt piece of evidence. If Revenue departs from uniform practice, it must explain why. Otherwise, classification becomes arbitrary. (V) Assessment Already Completed: (i) The Proper Officer examined assessed, enhanced value and accepted classification. Later, without any fresh evidence classification has been changed. This itself shows change of opinion rather than discovery of new evidence. (ii) The decisions of reopening where the assessment has got finality are beyond the capacity of Law where there is no new material. (VI) No Evidence Produced by Revenue: (i) The Revenue has failed to produce Test report, Technical literature, Textile Committee opinion, Expert witness, Chemical Examiner's report, Market enquiry, Manufacturer's specification, Fibre composition, Yarn composition, GSM analysis etc. Therefore, there is absolutely no evidence. (ii) Denial merely because Revenue believes that another heading should apply without any positive proof or evidence which is illegal. 8.1. In view of the above submissions, the Ld. Counsel for the appellant contends that the goods in question are rightly classifiable under Customs ....
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....y report before rejecting the declared classification. This view has been held by the Hon'ble Supreme Court in the case of Commissioner of Central Excise v. Wockhardt Life Sciences Ltd. [2012 (277) E.L.T. 299 (S.C.)], wherein it has been categorically held that the burden to prove classification lies upon Revenue. The relevant portion of the said decision is reproduced below: "30. There is no fixed test for classification of a taxable commodity. This us probably the reason why the 'common parlance test' or the commercial usage test' are the most common [see A. Nagaraju Bors. v. State of A.P., 1994 Supp (3) SCC 122 = 1994 (72) E.L.T. 801 (S.C.)]. Whether a particular article will fall within a particular Tariff heading or not has to be decided on the bases of the tangible material or evidence to determine how such as article in understood in 'common parlance' or in 'commercial world' or in 'trade circle' or in its popular sense meaning. It is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive index of the legislative intension, when the statute was enacted [see D.C.M. v. State of Rajasthan, 1980 (4) SCC 71 = 1980 (....
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....ct to be understood in the technical sense [see Akbar Badrudin v. Collector of Customs, 1990 (2) SCC 203 = 1990 (47) E.L.T. 161 (S.C.); Commissioner of Customs v. G.C. Jain, 2011 (12) SCC 713 = 2011 (269) E.L.T. 307 (S.C.)]. A residuary entry can be taken refuge of only in the absence of a specific entry; that is to say, the latter will always prevail over the former [see C.C.E. v Jayant Oil Mills, 1989 (3) SCC 343 = 1989 (40) E.L.T. 287 (S.C.); H.P.L. Chemicals v. C.C.E, 2006 (5) SCC 208 = 2006 (197) E.L.T. 324 (S.C.); Western India Plywoods v. Collector of Customs, 2005 (12) SCC 731 = 2005 (188) E.L.T. 365 (S.C.); C.C.E. v. Carrier Aircon, 2006 (5) SCC 596 = 2006 (199) E.L.T. 577 (S.C.)]. In C.C.E. v. Carrier Aircon, 2006 (5) SCC 596 = 2006 (199) E.L.T. 577 (S.C.), this Court held : "14.....There are a number of factors which have to be taken into consideration for determining the classification of a product. For the purposes of classification, the relevant factors inter alia are statutory fiscal entry, the basis character, function and use of the goods. When a commodity fall within a tariff entry by virtue of the purpose for which it is put to (sic. produced), the end u....
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....ase, we find that no samples have been drawn to ascertain the constituent material of the fabric imported. It is pertinent to note that the classification of the goods under Chapter 60 depends upon fiber composition, weight, predominance, textile construction, etc. These cannot be determined merely from invoice, packing list or visual examination. This Chapter is required to be properly analyzed regarding Section XI of the First Schedule of the Customs Tariff Act, 1975, the HSN Explanatory Notes of this chapter, differences between the relevant tariff entries, meaning of Warp Knitted Fabrics, meaning of Synthetic Fabrics, meaning of Artificial Fabrics, meaning of Mixed Textile Materials, etc. The claim of the appellant in this case is that they have imported fabrics containing mixed lots of fibres. According to the appellant, these fabrics were not made up of purely 'synthetic' or 'pure artificial' fibres, but are made up of mixed lot of fibres. We agree with the submission made by the appellant that such a fabric made up of mixed lot of fibres cannot automatically be treated as 100% synthetic fabrics unless the fibre composition is scientifically determined. In the present case, w....
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....Table supra. However, if the fabric is not made exclusively of cotton, synthetic or artificial fibres, then the said goods has to be classified under the residual entry 6005 9000. In the present case, the appellant's claim is that they have imported fabrics made up of a mixed lot of fibres, which by composition are not purely synthetic in nature. It is a fact that no testing has been conducted by the Department to ascertain the percentage of various constituent materials in the fabric or to disprove the stand taken by the appellant. Although, we find that the Appellant has also not submitted any Test Report in support of their claim that the fabric is made up of fibres of mixed lot containing other fibres and their percentages thereof except claiming that the fabric is made up of mixed lot of materials, since the Department had not raised any objection as to the classification or the eligibility towards the benefit of the said Notification at the time of clearance of the goods, we are of the opinion that onus in this case lies on the Revenue to substantiate by means of corroborative evidence that the goods had in fact been mis-classified. The said view as to responsibility of provi....
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....e appellant. In the absence of any fresh evidence warranting reclassification, we hold that the classification adopted by the appellant cannot be rejected. 11.9. Further, a perusal of the impugned order reveals that the Ld. adjudicating authority has re-classified the impugned goods under the Tariff Entry Nos. 6005 3500 to 6006 3900 applicable to warp knitted fabrics of 'synthetic fibres'. It can thus be seen that the goods have not been specifically classified under a particular Tariff Entry. There is no provision in law to classify the goods under multiple Tariff Entries between 6005 3500 to 6006 3900. In any case, as there is no evidence available on record to hold that the fabrics imported by the appellant are exclusively purely made up of 'synthetic fibres' so as to justify such an approach, we hold that the re-classification done by the Ld. adjudicating authority in the impugned order is legally not sustainable and hence we reject the same. In the absence of any cogent or corroborative evidence available on record to dispute the classification claimed by the appellant under the Customs Tariff Item No. 6005 9000, and since the same has been approved by the Proper officer an....