Case Law Details
Diamond Creations Vs C.C.-Mundra (CESTAT Ahmedabad)
Coming to the contention of revenue regarding forgery of the textile committee report, we do not find any reason to go into the detail as the fact that reports were forged does not impact the classification assuming the reports relied upon by the department are the original one as was held in Sunrise Trader case (supra). Lastly personal penalty on the charge of forgery of Textile Committee report, Mumbai on Bajrang Sharma, Amit Momamya and Mahesh Bhanushali, have been imposed mainly on the basis of confessional statements of all three persons involved. We find that forgery is a very serious charge which should be proved by clear and cogent evidence which seems to be missing in the present case as two of them have retracted their statement and the statement of Mahesh Bhansuhali is the one left for which both the appellants have asked for cross examination which was denied by the lower authorities, which in our view should have been given since other confessional statements were retracted. In our view imposition of penalty only on the basis of Mahesh Bhanushali is not tenable, hence set aside.
FULL TEXT OF THE CESTAT HYDERABAD ORDER
The common issue in all the above appeals involved is that the goods imported by the Appellants declaring the same as Polyester Bed Cover are Polyester Bed Cover or Polyester Fabric and whether the same is classifiable under Custom Tariff Heading 63041930 as declared by the Appellant or under Custom Tariff Heading 54075490 as claimed by revenue.
1.1 Brief facts of the case are that the appellants are engaged in the business of importing 100% polyester bed covers, polyester quilt covers and polyester blankets. The appellants had filed bills of entry declaring the goods as 100% Polyester Bed Cover under CTH 63041930. The said consignment was examined by SIIB, Mundra and it was found there were pieces of rectangular shape of printed fabrics, folded and loosely stitched from two sides. Representative Samples were drawn and forwarded to the textile Committee, Mumbai to ascertain whether the said samples fall under the category of “made ups” as defined under HSN. Test Report of Textile Committee, Mumbai was submitted by Custom Broker at Mundra Custom House, wherein Textile committee opined stating that the sample is to be classified as “made up” in Correct description & Classification of the sample as declared by the Appellant in bills of entry whereas, a copy of Test Report obtained by officer of SIIB, Custom House, Mundra in person revealed a different remark as “could not be ascertained”. When clarification was sought from the Committee, they confirmed that the report obtained by SIIB officer is the genuine report and the report submitted by Custom Broker is the fake report. The Textile Committee’s report reflects that item is 100 % polyester and warp is texturised yarn but the weft cannot be ascertained and expressed opinion that 38.4 % is texturised yarn and remaining 61.5% cannot be ascertained, therefore CTH cannot be decided. Since actual composition of texturised and Non texturised yarn was not forthcoming hence, vide letter sample was drawn and sent to Ahmedabad Textile Research Association (ATIRA) for ascertaining the nature and composition of goods, ATIRA confirmed that the samples are made up of 100% polyester and contains all texturised filament yarn. As the fabric has been peach finished the filament yarn are damaged, hence actual strength of warp and weft yarns used in making the fabric cannot be determined. Show Cause Notices were issued to the Appellants relying upon the Textile Committee Reports and statements of various persons. Later on Show Cause Notices were adjudicated confirming the custom duties and penalty on the importers and personal penalties were imposed on authorised persons of the importer and CHA and other person involved under Section 28(4), Section 24AA, Section 112(a), Section 114A, Section 114AA of Customs Act, 1962. Therefore the present appeals.
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