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(iii) The test report dated 21.9.2016 in respect of Girls Pyjama states that 'in our opinion, the submitted garments may be C/52255/2019 & Others classified as polyester/polyurethane Knitted Girls Trousers under HS 6104.61;
(iv) The test report dated 30.8.2016 in respect of Girls Pyjama states it "cannot assess HS classification";
(v) Test Report dated 8.10.2016 with respect of samples of Girls Leggies states 'in our opinion, the submitted garments may be classified as 'Viscose Girl's Trouser" under HS 6204.69;
27. In the impugned order, the Commissioner held that they were trousers primarily on the basis of test reports of the Textile Committee. While sending requests to test the 71 samples (in 56 envelopes), DRI also, requested the Textile Committee to 'send the correct CTH (Customs Tariff Heading) of the samples'. The Textile Committee replied that it cannot give the CTH and instead will provide HS (Harmonised System) classification. Thereafter, the Textile Committee by its letter dated 5.10.2016 returned the samples along with test reports. Two of these test reports were relied upon in the SCN as RUD 23 and RUD 24. RUD 23 has a test report TR No. 677/TC/SE/LDE/2016-17 dated 30.8.2016 and an Additional Test Report dated 21.9.2016, both referring to the same sample (Lab. Sample No. CUSCOO-596) sent along with the same test memo (No. 13/DEL/UI/GHEVRA-71/16 Marked- 13/1) sent under the cover of DRI's letter dated 6.7.2016 and received in the lab on 8.7.2016. The first test report dated 30.8.2016 indicates that the test was performed from 8.7.2016 to 30.8.2016 and gives the composition of the fabric but against 'HS Classification of Garment' it states "It is not possible to ascertain the correct measurement of the garment as during the testing procedure the sample got de-shaped and destructed; Hence cannot assess the HS Classification." Their report also has a remark that this parameter was subcontracted to EP&QA, Naraina (New Delhi). The additional test C/52255/2019 & Others report dated 21.9.2016, signed by the same Assistant Director (Laboratory) refers to the same sample received on the same date with the same Test Memo and the covering letter of DRI but states that it was tested from 8.7.2016 to 21.9.2016 but gives a different report of the same parameter HS Classification of Garment and it says "In our opinion the submitted garment may be classified as "Polyester/Polyurethane Knitted Girls Trouser" under HS code 61.04.63". This report also remarks that this parameter was subcontracted to EP&QA, Naraina (New Delhi).
28. Thus, according to the above test report and additional test report, the sample received on 8.7.2016 was tested from 8.7.2016 to 30.8.2016 and the composition of the fabric was determined but determination of the nature of the garment and its HS classification was outsourced to EP & QA, Naraina (New Delhi) but it was not possible to determine the HS classification because the sample got de-shaped and destroyed during testing. Surprisingly, thereafter, based on the same sample, the same EP&QA to whom the determination of HS classification was outsourced again tested the same sample (which was de-shaped and destroyed earlier) for a longer period from 8.7.2016 to 21.9.2016 and the opinion in the test report is that the garment should be classified as 'Polyester/Polyurethane knitted girls trouser" under HS Code 61.04.63. It needs to be noted that the additional test report does not say that an extra sample had been received which they had examined and gave the additional report. It refers to the same sample which was received on 8.7.2016 which had already been destroyed during testing. It is not clear as to how the Textile Committee developed C/52255/2019 & Others the expertise to determine the nature of the garment and HS Code, which was impossible to determine just 21 days before.
29. Similar is the case with the other test report which is RUD 24 to the SCN. The sample was received on 8.7.2016 and tested from 8.7.2016 to 30.8.2016 and the test report dated 30.8.2016 says "It is not possible to ascertain the correct measurement of the garment as during the testing procedure the sample got de-shaped and destructed; Hence cannot assess the HS Classification." Then the same sample received on the same date was tested from 8.7.2016 to 6.10.2016 and the HS classification of the garment was reported as "In our opinion, the submitted garment may be classified as "Viscose Woven Girls Trousers" under HS heading 62.04.69.