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2023 (8) TMI 750 - AT - CustomsClassification of imported goods - Industrial Composite Mixture - classifiable under tariff heading 27101290 or under CTH 27101990 - department failed to appreciate that on examination it was found that the goods were declared as "Industrial Composite Mixture", however, on the basis of test report, the goods was found to be light oil - HELD THAT:- It is a clear finding that the product was light oil has been arrived at, by the department. The learned Commissioner (Appeals), after detailed discussion upheld the classification proposed by the Department. As can be seen the report sought to be relied upon by the appellant was drawn behind the back of the department and in another country and therefore cannot be given precedence over the report relied upon by the Department, which has much higher credence, in the factual matrix of the matter, as the party’s report does not even match on the parameters tested by the department. Further even by relying upon this report, the appellants despite advice of suppliers for second opinion and the sample re-test did not opt for same foregoing their right of SCN or personal hearing or even re-test in the matter and just pleading for minimum fine and penalty. After having got the goods cleared by waiving Show Cause Notice or personal hearing and requesting for imposition of minimum fine, which were clearly brought in violation of EXIM policy relating to light oil at the relevant time as the same was a canalised item and was allowed to be imported only through State Trading Enterprises, as per the policy condition 5 of chapter 27. An after thought of the appellants cannot be allowed to help their cause. Reliance in this regard is placed on PINE CHEMICAL SUPPLIERS VERSUS COLLECTOR OF CUSTOMS [1992 (9) TMI 111 - SUPREME COURT] to emphasize that when violation in relation to goods are accepted, penalties get attracted. Party had all the opportunity to seek re-test or even cross examination of Chemical analyst, if it found it to be erroneous, but it chose not to do the same. Having acquiesced with so termed erroneous report, it cannot now be allowed to resist it. Error, qui non resistitur. (An error not resisted is approved) will therefore, in any case apply in the facts and circumstances of the matter. Having accepted the classification and the nature of goods without seeking any re-test of the sample, it is found that the present appeal is devoid of merits both on classification issue as well as violation of ITC policy and penalties imposed - there are no merits in the present appeal - appeal dismissed.
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