VESTERGARD FRANDSEN (I) PVT. LTD. Vs. CC (ICD)

JUDGEMENT

(1.) The issue involved in this appeal, filed by M/s. Vestergard Frandsen (I) Pvt. Ltd., is whether the goods imported by them are classifiable under Sub -heading No. 6002.43 of the first Schedule to the Customs Tariff Act as knitted fabrics claimed by them or under Heading 58.04 as net fabric confirmed by the Commissioner (Appeals) under the impugned Order.

(2.) Shri S.V. Arya, learned Advocate, submitted that the Appellants had received an order from the Ordnance Equipment Factory for supply of the Netting Mosquito Round Mesh of Polyester Filament; that as per the specification attached with the Order the material was to be knitted fabrics; that accordingly they imported consignment of knitted fabrics from M/s. Minh Khai Textile Company, Vietnam; that the Deputy Commissioner under Order -in -Original No. 7/2002 dated 7/2002 dated 28.3.2002 classified the impugned goods as knitted fabric classifiable under Heading 58.04 of the Tariff; that the Commissioner (Appeals) also under the impugned Order has rejected their appeal. The learned Advocate, further, submitted that the sample drawn by the Department was not sent for examination by the Chemical Examiner and the Order -in -original had been passed without any text report; that the classification has been decided merely on the basis of physical examination; that the question whether the fabric is knitted or not can be examined only with the help of scientific instruments; that they had obtained the opinion of Indian Institute of Technology, Delhi who had opined that the sample of fabric is Warp Knitted Fabric; that similarly Northern India Textile Research Association has also opined that the fabric of which the sample was provided by the Appellants falls under the category "Knitted Fabric"; that the impugned Order has been passed by ignoring the report of independent organization like Indian Institute of Technology and NITRA; that the characteristics of the impugned goods mentioned by the Deputy Commissioner in the Order -in -original are not the characteristics of the goods imported by them; that it has been held by the Supreme Court in the case of Hindustan Ferodo Ltd. v. CCE, Bombay, 1997 (89) ELT 16 (SC) that onus of establishing the classification of the goods lies upon the Revenue; that in the present case Revenue has laid no evidence to classify the impugned goods under Heading 58.04 hence the onus has not been discharged. He also mentioned that the Appraiser of Customs at the time of assessment of Bill of Entry contended that the impugned goods fall under Sub -heading 5804.10 of the Tariff; that it has been held by the Tribunal in the case of Sunil Polyplast Ltd. v. CCE, Calcutta, 2002 (146) ELT 435; that personal opinion of Customs Appraiser cannot be equated with the expert opinion.

(3.) Countering the arguments Mrs. Charul Baranwal, learned SDR, submitted that impugned goods were declared to be Netting Fabric; that as per the invoice the goods had been described Netting Fabric; that from the fact that the fabric in question has been described as Netting Fabric in the invoice goes to show that it was net fabric classifiable under Heading 58.04 of the Tariff; that the opinions of I.I.T. and N.I.T.R.A. have been obtained on the samples sent by the Appellants themselves without the knowledge of the Department; that it is not known as to which sample had been sent by them to these organizations for obtaining their opinion and in view of this their opinions are not be relied upon. She further mentioned that the Deputy Commissioner has given his finding as under which has not been rebutted by the Appellants by bringing on record any material or evidence: