BEETA EXPORTS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) M/s. Beeta Exports have filed this appeal being aggrieved with the Adjudication Order No. 47/2001, dated 31 -10 -2001 passed by the Commissioner of Customs, Amritsar.

(2.) Shri Harish Chander, learned Sr. Advocate, submitted that the Appellants filed a Bill of Entry No. 2066, dated 20 -10 -1998 for the clearance of Acrylic Tow Waste classifiable under Sub -heading 5505.10 of the First Schedule to the Customs Tariff Act and claimed the benefit of Notification No. 30/97 -Cus., dated 1 -4 -1997; that the consignment was purchased by them on high sea -sale basis from M/s. Garg Woollen Mills for Rs. 5,91,550/ -; that the said Garg Woollen Mills had purchased the goods from M/s. Bollag International Corporation, U.S.A.; that the Commissioner of Customs, under the impugned order, has held the goods to be Acrylic Tow falling under Subheading No. 5501.30 of the Tariff; enhanced the value to Rs. 8,23,452, imposed redemption fine, confirmed duty and imposed penalty of equivalent amount. The learned Senior Counsel, further, submitted that the impugned goods have been classified by the Commissioner as Acrylic Tow falling under Sub -heading 5501.30 on the basis of the report of the Textile Committee Laboratory and the report of the Chemical Examiner, C.R.C.L., New Delhi; that they have made repeated prayer to the Adjudicating Authority for re -testing of the samples at SASMIRA and other laboratories which have been ignored; that it has been held b

(3.) the tribunal in K.G. Gluco Biols Ltd. v. CCE, Belgaum, 1996 (87) E.L.T. 463 (T) that "the plea for retesting of the samples should have been acceded to"; that there is discrepancy and vagueness in the Test Reports and two different results which are at variance with each other have been given; that CRCL Report mentions that there are two small patches of fused filament whereas the Textile Committee Laboratory reports that there are no fused filament; that further as per Textile Committee Laboratory twist is less than 5 turns per meter whereas as per CRCL, it is not twisted. He also mentioned that the Department has asked in Test Memo about the properties of the material instead of asking whether the sample is Tow Waste or Tow; that it has been held by the Supreme Court in Bombay Oil Industries Pvt. Ltd. v. Union of India - 1995 (77) E.L.T. 32 (S.C.) that method of testing should be as laid down by ISI; that the way the query was made from the Laboratories in Test Memo itself was suggestive to give report in a particular manner and it is against law: that the samples should have been sent to the Laboratories just for testing without any suggestion and apparently the testing agencies have made tests in a biased manner and have given the test reports as per suggestive samples sent by the Department; that under these circumstances, no reliance can be placed on these test reports; that the Appellants have imported Acrylic Tow waste and not Acrylic Tow and the product in question is correctly classifiable under Sub -heading 5505.10 of the Tariff.