COMMISSIONER OF CENTRAL EXCISE Vs. EXPORTEC INDIA EXPORTS

JUDGEMENT

(1.) This order shall dispose of above said five appeals filed under Section 130 of the Customs Act, 1962 arising out of common order dated 7-11-2008 passed by the Customs, Excise & Services Tax Appellate Tribunal, New Delhi (for short "the Tribunal"). The appellant, Revenue has claimed the following identical question of law on all these appeals:

(2.) The respondents imported polyester fabric (untextured) and claimed classification under Chapter Heading 5407 61 90 of the Custom Tariff. A show cause notices were issued to the assessee, respondents herein, to show cause that the fabric imported is polyester. The adjudicating authority on the basis of the chemical examiner's report concluded that the goods are classifiable under Chapter Heading 5407 52 90 and that such goods are liable to confiscation. But since the goods have been released provisionally, the differential duty was claimed. The Tribunal accepted appeal holding that test reports relied upon by the Revenue was not conducted as per the protocol specified in Explanatory Notes.

(3.) The Revenue relied upon the reports of Central Revenue Chemical Laboratory (CRCL) to assert that the goods are not as per the declaration furnished but as per the sample, the fabric is cut piece of Black Coloured Woven fabric composed wholly of textured multifilament yarn of Polyester. The samples were re-testing from CRCL, when importer disputed such findings. In the re-testing report, it was found that the sample is a cut piece of Black Coloured Woven fabric in the constitution of each textured multifilament yarn of polyester. The Adjudicating Authority has returned a finding, on the basis of such reports, that the importer has intentionally and wilfully misdeclared and suppressed the facts to evade payment of appropriate duty on the imported goods.