2007(07)LCX0296

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EASTERN ZONAL BENCH AT KOLKATA

Dr. Chittaranjan Satapathy, Member (Technical) and D.N. Panda, Member (Judicial)

Ganesh Global

Versus

Commissioner of Customs (Port), Kolkata

Order No. A-1455/KOL/07 decided on 26.07.2007 in Customs Appeal No. 307/06

Advocated By -

Piyush Kumar, Adv. For the Appellant
Y.S. Loni, J.D.R. For the Respondent

ORDER

Dr. Chittaranjan Satapathy, Member (Technical)


1. Heard both sides.

The impugned goods were imported by the Appellants claiming the same to be Nylon Fabrics coated with Polyurethane. It was the claim of the Appellants that since coating was visible to the naked eye, the impugned goods should be classified under Heading 59.03. The Department has classified the impugned goods under Heading 54.07 on the ground that the coating is not visible to the naked eye.


2. When the matter was last heard on 15th June, 2007, the Appellants relied on the report of the Custom House Chemical Examiner as well as the subsequent report of the Joint Director, CRCL which supported their claim.


3. On the other hand, learned D.R., Shri Y.S. Loni appearing for the Department relied on the report of the Assistant Director of the Textile Committee which supported the Committee's case. Accordingly, the Bench had directed the Joint Director, CRCL as well as the Additional Director of the Textile Committee to remain present today (25th July, 2007).


4. The Joint Director, CRCL appearing today, explains the Chemical Examiner's report dated, 4th August, 2005 as well as his subsequent report dated, 25th August, 2005 and another letter dated, 28th September, 2005 written by him to the Additional Director, D.R.I. The present case was made at the instance of the D.R.I, and the samples drawn by DRI officials and sent to the Chemical Laboratory of the Custom House, were duly analysed following a method prescribed by the Director, CRCL., the details of which were explained in a letter from Director (Revenue Laboratories) to the Additional Director General, DRI, vide his letter dated, 16th October, 2001. The Joint Director clarified that the sample was dissolved in 1:1 Hcl solution in which Base Nylon Fabric dissolves and the coating gets separated. The coating was, thereafter, examined and the same was clearly visible to the naked eye. In one case, it was white in colour. In other cases they were of "different colour.


5. We find from the letter dated, 28th September, 2005 written by the Joint Director to the Additional Director General, DRI, Kolkata that the testing was done in presence of the three officers deputed from DRI. When the learned Assistant Director of the Textile Committee is asked to clarify the report signed by him, he states that the report signed by him was based on actual testing by the Textile Committee officials in Mumbai. He also expresses his ignorance regarding the method adopted for testing the samples and how the coating was indicated to be not visible to the naked eye.

5.1 After hearing both sides and taking into account the clarifications given by the concerned Joint Director, CRCL as well as the Assistant Director of the Textile Committee, we find that the testing done by the Director, CRCL both at the level of Chemical Examiner and at the level of the Joint Director including the testing done in presence of the DRI officials, are reliable and the same have followed a detailed testing process indicated by the Director, CRCL.

On the other hand, the clarification given by the Assistant Commissioner of the Textile Committee in respect of the report signed by him is not at all satisfactory as the signing official is not even aware of the testing procedure adopted. Hence, we are inclined to accept the result of testing done by the Custom House Chemical Laboratory and re-testing done by the Joint Director, and hold that the Appellants' claim that the coating is visible to the naked eye, is acceptable and consequently conclude that the impugned goods are liable to be classified under Heading 59.03, as claimed by the Appellants.


6. In view of our findings above, we set aside the impugned Order including the duty-demand, fine and penalty imposed there under, with consequential benefit to the Appellants. The appeal is allowed.

Equivalent 2007 (123) ECC 0313

Equivalent 2007 (149) ECR 0313 (Tri.-Kolkata)

Equivalent 2007 (218) ELT 0609 (Tri. - Kolkata)