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2016 (3) TMI 840 - CESTAT NEW DELHIDemand of Safeguard duty - In terms of notification no.71/2009-Cus dated 10,06.2009 - Whether thickness of Aluminium foils imported is 7 micron or above or not - Assessee asked department to conduct test 3 times as he is not satisfied - Held that:- the argument of the assessee is not fully convincing regarding variation in different reports and it is not so easy to correctly determine the exact thickness of Aluminium Foil. While the thickness in microns is to be ascertained by the accurate scientific methods, it is not contested that the competent labs including a private independent competent lab is not having facility or expertise to conduct such tests. None of the reports indicated any figures nearer to 6 Micron as declared by the assessee while importing the impugned goods. Also the assessee placed a reliance of 8% tolerance limit prescribed by the Bureau of Indian Standards of Aluminium Foil but the standards prescribed there are for the quality purpose and have no relevance to determine the correct thickness and thereupon tax liability based on such thickness. It is to be noted that the samples were re-tested twice with a request and concurrence of the assessee in approved laboratories. Therefore, the assessee is liable to pay safeguard duty. Imposition of penalty - Section 114A of the Customs Act, 1962 - Held that:- penalty against the managing director of the assessee is not reduced. But the penalty imposed on Authorised Signatory is not justifiable being a salaried employee of the assessee and has been discharging assigned duties as per the direction of the Managing Director, There has been no allegation of personal gain to him in this transaction. He acted as an employee of the assessee company and it is not established that he abetted any offence of the assessee. Therefore, the penalty imposed on him is not sustainable. - Decided against the assessee
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