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2020 ] A.R. TRADING COMPANY v. COMMR. OF C. EX. (APPEALS-II), BANGALORE 391

equipped for the same. Learned Counsel submits that it can be seen that except
for carrying out superficial tests, the Customs House Laboratory is not equipped
to test synthetic filament yarns like the Textile Committee of the Government of
India or SASMIRA (Bombay) or ATIRA (Ahmedabad). The tests were not carried
out by the Chemical Examiner, viz., V. Suresh but by the Chemical Assistant, J.
Mohan Kumar. In the light of the evidence given during the course of the cross-
examination, no weight or reliance can be given to the Test Report dated 21-9-
2006 of the Customs House Laboratory, on the basis of which the Department
proposes to change the classification of the impugned goods.
2.2 Further, Learned Counsel submits that the Appellants sent samples
of the impugned goods for Test to M/s. Intertek Testing Services India Pvt. Ltd.,
Bangalore, on 9-10-2006; from the Test Report dated 24-10-2006, it can be seen
that the Denier Count in respect of one sample is 737.1 and 1752 in respect of an-
other sample; the sample was of two sets of Black Polypropylene monofilament
yarn in colour (A) (600 D) (B) (1200 D)”. He submits that it is an admitted posi-
tion that both the Test Reports, by Textile Committee dated 11-9-2004 and by
Chemical Examiner dated 29-9-2006, clearly state that the impugned goods are
Polypropylene Synthetic Yarn of 600 deniers or more i.e. more than 60 deniers,
goods cannot be classified under CSH 54.02; such synthetic yarn of 600 deniers or
more cannot be classified under CSH 5402 of CETA, 1985, which covers synthetic
filament yarn (other than sewing thread), including synthetic monofilament of less than
60 Deniers”.
2.3 Learned Counsel submits that in contrast, CSH 5404 of CETA, 1985
covers “Synthetic monofilament of 60 deniers or more and of which no cross-
sectional dimension exceeds 1mm; strip and the like (for example, artificial
straw) of synthetic textile materials of an apparent width not exceeding 5mm”.
Under the circumstances, the correct classification for the impugned goods is
CSH 5404 as against CSH 5402 of CETA, 1985. He submits that the impugned
goods, viz., Polypropylene Monofilament yarn having a denierage between 400
to 2000, are correctly classifiable under CSH 5404 of CETA, 1985 and are entitled
to the exemption under Notification No. 7/2003, dated 1-3-2003 vide SI. No. 33
and Notification No. 30/2004-C.E., dated 9-7-2004.
3. Learned Counsel further submits that Test Report of the Chemical
Examiner dated 29-9-2006 is applicable only prospectively and cannot be applied
retrospectively. He relies upon the following decisions :
• Pattani Chemicals v. CCE - 1991 (56) E.L.T. 253 (T) Approved by the
Supreme Court in 1998 (98) E.L.T. 582 (S.C.).
• Doddaballapur Spinning Mills Ltd. v. Asst. Collector of C. Ex. - 1992 (61)
E.L.T. 539 (Kar.)
• Bojaraj Textile Mills v. ACCE - 1990 (45) E.L.T. 559 (M)
• Bee-Am Chemicals Ltd. v. CCE, Raigad - 2004 (167) E.L.T. 534 (T)
• I.C.I. (I) Ltd. v. CCE, Mumbai-VI -2003 (160) E.L.T. 405 (T)
• Essma Woolen Mills (P) Ltd. v. CCE, Chandigarh - 2001 (134) E.L.T. 262
(T)
• Agarwal Metal Works, Rewari - 1982 (10) E.L.T. 689 GOI

EXCISE LAW TIMES  1st May 2020  169