IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 27.9.2011 CUSAP.No.8 of 2011 Commissioner of Central Excise, Delhi ... Appellant Versus M/s Exportec India Exports ...Respondent CUSAP.No.9 of 2011 Commissioner of Central Excise, Delhi ....Appellant Versus M/s Royal Trading Company ...Respondent CUSAP.No.10 of 2011 Commissioner of Central Excise, Delhi ... Appellant Versus M/s Krishna Business Home ... Respondent CUSAP.No.12 of 2011 Commissioner of Central Excise, Delhi .... Appellant Versus M/s Amar Sales Corporation ...Respondent CUSAP.No.13 of 2011 Commissioner of Central Excise, Delhi ....Appellant Versus CUSAP.No.8 of 2011 M/s Amar Sales Corporation ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. H.P.S. Ghuman, Advocate for the appellant. HEMANT GUPTA, J (ORAL) 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 questions of law ion all these appeals: “Whether Hon'ble CESTAT is correct in ignoring CRCL's Test reports merely on the ground that prescribed procedure as given in explanatory notes was not followed by the CRCL where that procedure is not relevant for differentiating Texturized and non texturized fabric in view of Explanatory Notes to sub heading 5402.31 to 5402.39 (1996 version) to Harmonized Commodity Description and Coding System (Commonly known as Harmonized System of Nomenclature.” The respondents imported polyester fabric (Untextured) and claimed classification under Chapter Heading 5407 6190 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 ( 2) CUSAP.No.8 of 2011 the basis of the chemical examiner’s report concluded that the goods are classifiable under Chapter Heading 5407 5290 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. 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 mis-declared and suppressed the facts to evade payment of appropriate duty on the imported goods. The learned Tribunal, in appeals filed both by the Revenue and the Assessee, returned a finding that the departmental laboratory has not used standard method prescribed to check the textured nature of filament under American Standard for Testing Material and that the protocol prescribed under the explanatory notes has not been followed, the relevant portion was also reproduced in the order. The Tribunal recorded a finding that the chemical examiner had ( 3) CUSAP.No.8 of 2011 been cross examined by the importer and in the cross examination, said Chemical Examiner admitted that the examination was on visual as well as microscopic examination. Therefore, the order of the Adjudicating Authority is not correct. Learned counsel for the appellant relies upon a judgment of Hon'ble Supreme Court reported as Reliance Cellulose Products Ltd v. Collector, Hyderabad, 1997 (93) E.L.T 646 (SC) wherein it was observed that the court may direct re-examination of the whole issue if the report given by the Chemical Examiner and the Chief Chemical are not correct. We do not find any merit in the said argument. In the present case, Chemical Examiner has been examined as a witness, who has deposed that the procedure prescribed for examination of yarn has not been adopted. Therefore, the finding of the learned Tribunal, in our opinion, is based upon question of fact. We do not find that any substantial question arises for its decision of this Court. Dismissed. ( HEMANT GUPTA ) JUDGE September 27, 2011 ( JASWANT SINGH ) manoj/ds JUDGE ( 4)