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2014 (6) TMI 193 - HC - CustomsPenalty u/s 114 - export Iron Ore Fines containing Fe + 64-65% - Fe content of Iron Ore exported by the respondent-exporter was found to be more than 65% - Confiscation of goods ordered - Order on the basis of CIQ reports - Commissioner in the course of hearing of the case, seem to have made reference to the report of chemical examiner at the receiving port in China and so also to some other documents which admittedly were not referred to in the show cause notice. Based on that material, the Commissioner passed the order dated 31.08.2006 imposing penalty of ₹ 25 lakhs on the respondent-exporter under Section 114 of the Customs Act - Held that:- Even if it is assumed that what learned counsel appearing for the appellant submitted is correct, still, in our opinion, the material on which the Commissioner relied upon cannot be the ground to hold that the Fe content of Iron Ore samples was more than 65%. The Commissioner held against the respondent-exporter placing reliance upon the two reports of the Laboratory at China dated 28.06.2004 and 07.07.2004 (CIQ report). It is not clear nor any attempt was made by the appellant to show that while conducting chemical analysis, what was the method adopted by the laboratory in China or what were the standards prescribed for collecting the samples and conducting chemical analysis there. The report of the chemical laboratory at China which has shown 0.27% more Fe content than what is prescribed. Admittedly, the show cause notice did not make any reference, direct or indirect to these reports. Therefore, in our opinion, the reports of laboratories in China are of no avail to the appellant to take their case any further. Even the other material which was relied upon by the Commissioner, was not disclosed/reflected in the show cause notice and in any case that would not help the appellants to contend that there was an admission on the part of the respondent-exporter that the Fe content of Iron Ore exported by them was more than 65%. As a matter of fact, respondent-exporter, right from inception has contended that the Fe content of Iron Ore exported by them was not more than 65%. - Decided against Revenue.
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