DCP IMPEX P. LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal arises from Order -in -original No. 31/2002, dated 26 -2 -2002 by which the imported goods declared as "Polyster Warp Knit Fabrics (assorted stock of colour)" from Taiwan in the Bills of Entry No. 286293, dated 3 -8 -2000, 286498 and 286499 both dated 4 -8 -2000 has been held to be classified under chapter sub -heading of CTH 6001.92 which specifically covers the 'knitted pile fabrics of man -made fibres'. The Commissioner noted that the test results obtained from the Chemical Examiner and the Textiles Committee to note that the sample clearly indicated that they were 'pile fabrics'. The Textiles Committee report also certified the item to be 100% Polyster and the type of weave as "pile warp knitted". Since the fabrics are knitted pile fabrics, and that chapter note 1(c) to Chapter 60 only elaborates that knitted pile fabrics even if they are impregnated or coated within, remain classified under heading 6001 and therefore he rejected the plea for classification of the item under CTH 6002 which covers "other knitted or crocheted fabrics".

(2.) We have heard Ld. Counsel Shri G.N. Raiwal for the importer -appellant and Shri A. Jayachandran, Ld. DR for the Revenue.

(3.) Ld. Counsel submitted that although they have not disputed the test results, the fact remains that the test results indicated that the item is "pile warp knitted". When it is a 'pile warp knitted', it has to go in the residual category of "other". He submitted that this chapter cannot be made redundant which is meant for 'warp knitted'. He pointed out that the heading 60.01 is for 'pile fabrics knitted or crocheted' but there is no mention of 'warp knitted' and hence when the item is 'warp knitted' which is specifically covered under 'warp knitted' and not under 'pile fabric'. He pointed to Interpretative Rule 3(c) which clearly lays down that when both the headings are identical, then the last of the heading should be preferred. He also pointed out that the Revenue has not relied on any market enquiries which was incidentally an oral one. He also pointed out that they have discharged the burden of proof in the classification matter in terms of Apex Court judgment rendered in U.O.I. v. Garware Nylons Ltd., 1996 (87) E.L.T. 12 (S.C.) and hence the classification prayed by them should be accepted. He also contended that the Commissioner cannot import his personal knowledge and the said inference drawn by the Technical Members of the Tribunal was not accepted by the Apex Court in the case of Hindustan Ferodo Ltd v. CCE, Bombay, reported in 1997 (89) E.L.T. 16 (S.C.). He also referred to the judgment of Ess Dee Carpet Enterprises v. U.O.I. and Ors., reported in (1990) 1 SCC 461 which refers to the process of weaving. The meaning of "warp and weft" is also referred to in the cited judgment.