2007 (9) TMI 101 - AT - Customs

Anti-dumping duty on mulberry silk on basis of test report Re-test of samples sought by appellant Procedure for drawl of samples not properly followed by Dept. Appellant cannot be penalized for Dept. failure to draw samples Adjudication order passed before the result of re-test is unjustified

Summary

Issues:
1. Discrepancy in grading of imported silk.
2. Confiscation of goods and imposition of duty and penalties.
3. Dispute over re-testing of samples.
4. Failure to follow proper procedure for sample testing.
5. Applicability of re-testing results on original order.

Analysis:
1. The case involved a discrepancy in the grading of imported silk where the importer declared 135 bales as 4A grade and 15 bales as 3A grade, but upon testing, it was found that the grades were actually 2A and 3A respectively. Further tests on additional samples also showed discrepancies. The goods were assessed to duty based on the initial test results, which indicated 10 bales as 2A grade attracting anti-dumping duty.

2. The Joint Commissioner adjudicated the dispute, demanded anti-dumping duty, confiscated the goods, and imposed fines and penalties. The Commissioner (Appeals) upheld this decision. However, the Tribunal set aside the order and remanded the matter for re-testing of the samples and a fresh decision based on the results.

3. The original authority re-adjudicated the matter and passed the same order as before, stating that a re-test was unnecessary. The Commissioner (Appeals) found it impossible to implement the Tribunal's directions due to the unavailability of samples with the Central Silk Board (CSB) or the importer. The Commissioner upheld the original decision, citing the available test results as sufficient.

4. The appellant argued that they had requested a re-test early on, and the Department's failure to follow proper sample testing procedures hindered the re-testing process. The Tribunal found that the Department's failure to draw and retain a duplicate sample for re-testing was unjust, and the appellants should not be penalized for the Department's shortcomings.

5. In conclusion, the Tribunal ruled in favor of the importer, setting aside the impugned order and allowing the appeal with consequential relief. The Tribunal emphasized the importance of following proper procedures for sample testing and reiterated that the appellants should have been given the opportunity for re-testing as directed.