2006(07)LCX0365

In the Customs, Excise & Service Tax Appellate Tribunal, Kolkata

Shri S.S. Sekhon, Member (Technical) and Shri Krishna Kumar, Member Judicial)

Vaibhav Textiles

Versus

Commissioner of Customs (Port), Kolkata-I

Final Order No. A-539/Kol/2006 dt. 4.7.2006 certified on 10.7.2006, Application No. MA (EH)-161/2006, SP-241/2006 in Appeal No. CDM-100/2006

Cases Quoted -

Shree Ganesh International vs. CCE, Jaipur 2005 (066) RLT 0443 (CESTAT-Del.) - Relied on [Paras 2.1, 2.2]

Advocated By -

Shri P. Kumar, Adv. for Appellants
Dr. D. Masiarna, JDR for Respondent

Per S.S. Sekhon :

Appellants imported a consignment of non-textured polyester fabrics at Kolkata & filed a BE No. 425 dated 14.12.2000 claiming the assessment under CTH 5407.61 & CETA 5407.22 on basis of the description in the import documents.

1.2. The subject consignment was intercepted by DRI officers, working an intelligence on imports of different types of fabrics by a syndicate through front companies by misdeclaring understating the value at various ports ICDs.

1.3. The consignment was subjected to 100% examination, samples was drawn £ sent to Customs House Laboratory for test & enquires conducted in India & Abroad.

1.4. The firm M/s. Vaibhav Textiles, appellant herein, were not found to be fictious or a front for any syndicate & no misdeclaration on about values declared were established. The Test Reports of Customs House Laboratory also indicated the declaration made about the nature of the fabrics. DRI officers thereafter sent the samples to Textile committee for another test & they also challenged the test of Customs Laboratory with the Chief Chemist CRCL New Delhi. The Textile Committee Test Report indicated the fabrics to be 100% polyester with textured filaments polyester Yarn in the Warp & non-textures Polyester filament in Weft. Based on this report a case of misdeclaration of the imported goods was made, by alleging correct classification to be under CTH 5407.69 as against 100% non-Textured polyester fabrics under law 5407.61 declared by the importers on the BE.

1.5. Consequent duty demands, confiscation liability under Section 111 (m) of the Customs Act, 1962 & penalty liability under Section 112 (a) on the appellant (Imports) & 112 (b) on CHA were arrived. Hence the appeal.

2.1. On classification of the said goods, it is an admitted position that they consist of Textured Filament Yarn in the Warp and the laboratory confirms the construction of the fabrics to be Textured Yarn of 67.0% in warp & 33% multifilament only in Weft Application of the ratio of decision in case of Shree Ganesh International, 2005 (066) RLT 0443 (CESTAT-Del.)=2004 (174) ELT171 (Tri.-Delhi) is called for, accordingly, the classification is rightly upheld under 54076900 of Customs Tariff Act, 1975.

2.2. Applying the ratio of same Shree Ganesh International, 2005 (066) RLT 0443 (CESTAT-DeL)=2004(10)LCX0031 Eq 2004 (174) ELT 0171 (Tri.-Delhi) & on the fact that the uncontroversted report of Customs House Chemist & other reports to be a variance & the declaration were made a bonafide belief based on the imports documents received from foreign suppliers no penalty & confiscation under Section 111 (m) is called for reason as arrived at and held in the case of Shree Ganesh International (supra) especially when intelligence from company imports being worked out by DRI & under value declared is not alleged.

2.3. Appellants are not contesting the duty determined & clearance under DFRC, as ordered by the Ld. Commissioner; no orders therefore are being passed on that part of the order.

3.1 Consequent to findings arrived, the confiscation, redemption fine & penalty as ordered are set aside & appeal allowed partly.

Pronounced in Court on 4.7.2006.

Equivalent 2007 (080) RLT 0315 (CESTAT-Kol.)

Equivalent 2007 (214) ELT 0408 (Tri.- Kolkata)