2022 (9) TMI 228 - Customs

Violation of judicial discipline - Denial of benefit of the Duty Free Import Authorization [DFIA] licence - Classification of imported Melamine - DRI received information that the appellant had mis-represented Melamine as Syntan and wrongly availed the benefit of exemption notification under the DFIA licence - whether the Melamine is a Syntan or otherwise? - HELD THAT:- According to the literature provided by the learned Counsel for the appellant including a patent and extracts of chemical dictionaries, melamine can be used for tanning leather without making a condensate first. It is clear that Melamine and formaldehyde can be simultaneously used on the leather for tanning instead of making a condensate first. Since the expert opinion is contrary to the published literature the appellant sought cross-examination of the expert. The Adjudicating Authority issued letters but the expert did not appear. The Adjudicating Authority could have issued summons to him to force his appearance, but he did not do so - On cross-examination, perhaps, there would be better clarity as to how the expert held a view contrary to other technical literature. Therefore, it is found that the reliance on the expert opinion of CRCL not correct in this factual matrix.

It is also found that prior to the issue of show cause notice there was an order of the Tribunal holding that Melamine qualifies as Syntan. The Additional Director of DRI and the adjudicating authority effectively said that the Tribunal was not correct. If it be their opinion, it was open for them to assail the order of the Tribunal before a higher judicial forum. Instead, the Additional Director DRI and the Assistant Commissioner have arrogated to themselves the role of a superior authority over the Tribunal and ignored the judicial precedent which is not only highly irregular, but is also in violation of judicial discipline.

The lower authorities have confirmed the demand ignoring the order of this Tribunal in COMMISSIONER OF CUSTOMS, NHAVA SHEVA VERSUS DIMPLE OVERSEAS LTD. [2002 (3) TMI 636 - CEGAT, MUMBAI], ignoring all the technical literature which state that Melamine can be used directly for tanning leather, relying on the opinion of CLRI contrary to the published literature and without even allowing cross-examination of that expert, on the ground that Melamine was not used in the export products contrary to the DGFT’s clarification that actual use does not matter and on the ground that the HSN codes of Syntan and Melamine were different although there is no stipulation of HSN in the licence and even contrary to the law laid down by Supreme Court in COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS GC. JAIN & ANR. [2011 (7) TMI 11 - SUPREME COURT] that goods which are used even after same processing and not directly can be imported under the licence.

The appeal is allowed.