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2019 (5) TMI 1032 - AT - CustomsDenial of benefit of exemption based on test reports for the present consignment and consignments cleared in the past - import of Fruit Grape Guard Packaging Paper in sheet form coated with Sodium Meta Bi Sulphite - Benefit of N/N. 21/2002 Cus. Dt. 01.3.2002 - benefit of notification denied on the basis of test report of samples relating to few consignments could be applied to the consignments imported and cleared in the past be denied. HELD THAT:- Not only on the basis of chemical test report but also relying upon the statement of Shri Dilip Patel, authorised signatory of the Appellant, the Adjudicating authority had concluded that the sample of imported papers when subjected to chemical test, found to be free from Sodium Meta Bi Sulphite. Consequently, he has held that the Appellants are not eligible for benefit of exemption Notification No.21/2002- Cus, dt.1.3.2002. Also, reading the opinion of UDCT, Mumbai, there is no contra report to the test results of CRCL, New Delhi. In the said report, the method of testing of samples has been narrated. There is no opinion about the contents of the samples. Therefore, the said reports also would not be of any help to the Appellant. The learned Commissioner extrapolated the test results of the samples to the consignments which were imported and cleared in the past. In absence of any adverse test report of the samples relating to past consignment, there is no merit in the order of the Adjudicating authority, to apply the test results of the samples drawn to the past consignments in directing confiscation and denying the benefit of exemption N/N. 21/2002-Cus, dt.1.3.2002. Consequently, the test report, be restricted to the consignment of packing papers whose samples were drawn and tested and found to be free from Sodium Meta Bi Sulphite. However, since there is mis-declaration of the description of the imported goods, in order to avail the benefit of exemption Notification No.21/2002-Cus, dt.1.3.2002, the goods which were seized and released provisionally are liable to confiscation and the importer and the persons associated are liable for penalty. The Appellants are not eligible to the benefit of N/N. 21/2002-Cus, dt.1.3.2002 relating to the imported consignments whose samples were drawn and test results found to be free from Sodium Meta Bi Sulphite. The test results of the samples cannot be extrapolated to the consignment cleared in the past - The Appellants are liable for discharging differential duty relating to the consignment whose test results were found to be free from Sodium Meta Bi Sulphite and also seized goods are liable for confiscation, and penalty attracted against the importer-Appellant and other Appellants. Since the quantum of demand to be recalculated as above, therefore, to compute the duty, fine and penalty relating to the consignment whose samples were tested, and found to be free from Sodium Meta Bi Sulphite, the matter is remanded to the Adjudicating authority. Appeal allowed by way of remand.
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