2023 (6) TMI 1259 - HC - Customs

Maintainability of appeal - import of Superior Kerosene Oil (SKO) or not - prohibited goods or not - discharge of burden of prove - re-testing of the samples - mis-declaration and mis-classifications of goods - absolute confiscation - penalty - HELD THAT - It is required to be noted that whether the subject goods fall within one category or other would essentially be a question of fact. However even while deciding the same if the Tribunal overlooks certain basic principles of law applicable to the case on hand and records a finding which could be termed as perverse then definitely such decision of the Tribunal would give rise to a question of law. In the case of Rajkamal Industrial Pvt. Ltd. 2022 (2) TMI 264 - GUJARAT HIGH COURT this Court held Where the determination of an issue depends upon the appreciation of evidence or materials resulting in ascertainment of basic facts without application of any principle of law the issue raises a mere question of fact. In the present case to arrive at the conclusion that the product is SKO there are eight parameters which need to be tested. As per the Test Report three parameters were tested. However the Test Report of the Chemical Examiner categorically suggests that the goods imported by the importer are meeting with the specification of Kerosene - In the case of Rajkamal Industrial Pvt. Ltd. 14 parameters were tested and on the basis of the report submitted by the concerned laboratories this Court has after applying the principle of reasonable doubt and preponderance of probability quashed and set aside the order passed by the learned CESTAT and the Tax Appeals filed by the Revenue were allowed. The appeal is admitted for considering the following substantial questions of law (i) Whether the Tribunal was right in holding that the Department has not discharged the onus to establish the cargo as Superior Kerosene Oil (SKO)? (ii) Whether in the facts and circumstances of the case the CESTAT was correct discarding Chemical Examiner s Report as inconclusive especially when the importer had not sought re-testing of the samples before the Original Adjudicating Authority or during investigation? (iii) Whether in the facts and circumstances of the case the CESTAT was correct in setting aside the directions of absolute confiscation of Prohibited Goods under section 111(d) 111(m) 111(o) 118 and penalty under section 112(a) of the Customs Act by the Adjudicating Authority despite the mis-declaration and mis-classifications of goods?

Summary

Issues:
The issues involved in the judgment are the classification of imported goods, the testing parameters for determining the nature of the goods, and the authority's decision on confiscation and penalty.

Classification of Imported Goods:
The Tax Appeal under Section 130 of the Customs Act was filed by the Revenue against the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the classification of goods imported by M/s. Oil Energy. The dispute arose when the goods were tested and found to meet the requirements of Kerosene, contrary to the importer's claim of being Low Aromatic White Spirit. The Adjudicating Authority and the Commissioner of Customs upheld the classification as Superior Kerosene Oil (SKO), leading to confiscation and penalty. The CESTAT, however, ruled in favor of the importer, prompting the Revenue to file the present appeal.

Testing Parameters for Determining Nature of Goods:
The main contention in the appeal revolved around the testing parameters used to determine the nature of the imported goods. The Additional Solicitor General argued that the goods met the specifications of Kerosene based on the Test Report, emphasizing the importance of multiple parameters. Reference was made to a previous case where the court applied the principle of "reasonable doubt" and "preponderance of probability" to support the Revenue's position. On the other hand, the importer's counsel highlighted the inadequacy of testing only one parameter, i.e., distillation, and stressed the need for comprehensive testing including acidity, burning quality, color, copper strip corrosion, and sulfur content.

Authority's Decision on Confiscation and Penalty:
The court analyzed the submissions from both parties and acknowledged that the determination of whether the goods were SKO or not involved factual considerations. However, if the Tribunal overlooks basic legal principles and records a decision that could be considered perverse, it raises a question of law. The court referred to a previous case to explain the concept of substantial questions of law. Ultimately, the court admitted the appeal to consider substantial questions related to the Department's burden of proof, the adequacy of testing, and the appropriateness of the CESTAT's decision on confiscation and penalty under the Customs Act.