ORDER
P.G. Chacko, Member (J)
1. After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we proceed to deal with the appeal.
2. The appellants had imported goods declared as “man-made embellishment roll (ribbon strips)” and sought clearance thereof under Bill of Entry dated 2.7.2000 at nil CVD under Notification 6/2000 (Sl. No. 154). The goods were claimed to be uncoated narrow woven fabric and accordingly classified under SH 5806.32, which attracted nil CVD. Provisional clearance was allowed on production of a Bank guarantee for Rs. 1,35,793/- towards CVD on the goods, pending receipt of test report from the Department’s chemical laboratory. The Chemical examiner by report dated 25.8.2000 reported thus:
each made of woven fabric composed entirely of polyester filament yarn (nylon) coated on both side with synthetic resin. Coating is visible by naked eyes.
On the basis of the above report, the Department proposed to classify the goods under SH 5903.90, which attracted CVD at 16%. Accordingly, show-cause notice was issued to the party. In reply to the show cause notice, the party asserted that coating over embellishment roll was definitely not visible to the naked eye. They also contested the above test report and requested for retest of the goods. The original authority rejected the request for retest and classified the goods under SH 5903.90 on the basis of the Chemical examiner’s report. Thus, the demand of CVD @ 16% on the goods stood confirmed against the appellants. The first appellate authority sustained the order of the lower authority. Hence the present appeal.
3. After carefully considering the submissions of both sides, we find that the demand of duty is solely on the basis of the Chemical examiner’s report which was not accepted by the party. The request of the assessee for retest of the goods was turned down. The Original authority, in the context of declining the party’s request for retest, observed that declaration of the goods by the importer was ‘narrow woven fabric’, so there is every possibility that the examining officer would have verified the description to the extent that the goods are narrow woven fabric. It has further observed that the party did not have any counter test result or documentary evidence to dispute the fact reported by the Chemical examiner. We are at a loss to understand the Joint Commissioner’s rationale behind the rejection of the importer’s request for retest. Sample was got tested at the request of the importer. Hence, it cannot be expected that the importer must have rival test result with him. When the test result came, it turned out to be against the importer. Hence the importer was well within his right to ask for retest by the Departmental laboratory concerned. It needs mention that the party did not ask for test report from any outside agency. Hence it appears to us that the party’s request for retest within the Department was bona fide and merited consideration. The learned Commissioner (Appeals) in the impugned order has not cared to address the party’s grievance against rejection of the request for retest. In the circumstances, we are inclined to set aside the orders passed by both the lower authorities, and to remand the case to the original authority. It is ordered accordingly. The original authority shall permit retest of the sample of the goods. We are given to understand that a sample intact must be available with the Customs authorities inasmuch as sampling was admittedly done in accordance with the prescribed procedure. It goes without saying that the original authority shall readjudicate the dispute on the basis of the result of such retest and pass a speaking order in the case after giving the party a reasonable opportunity of being heard.
4. Appeal stands allowed by way of remand.
(Dictated and pronounced in open Court)