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2022 (12) TMI 567 - CESTAT AHMEDABADMisdeclaration of description and value - Validity of test report - Cross examination of Chemical Examiner - Import of Suspension grade PVC Resin - consignment was declared to be “off grade and wet” - On examination, the goods imported found to be PVC resin but without any marking “off grade or wet” on any of the bags - Recovery of dues in view of CIRP proceedings under IBC HELD THAT:- Appellant objected on the said test report right from the investigation on the ground that non-mention of method of testing, not testing relevant parameters, quantity of remnants not mentioned, delay in re-testing and there are other parameters like density, VCM in residual PPM, absorbing amount of plasticizer for 100Gms resin, degree of polymerization has not been tested. We also find that the appellant had requested for cross-examination of the Chemical Examiner. However, no such opportunity was granted to them.In the present proceeding the Test reports are the only evidences with the Revenue to say that imported goods are “Prime Grade”, therefore, adjudicating authority was not right in rejecting the cross-examination of the chemical examiner. In the present matter, refusal to allow cross-examination of the Chemical Examiner is to be viewed as a serious violation of principles of natural justice. Had the cross examination been allowed, the appellant could have availed an opportunity to enquire the testing methodology and standards adopted by CRCL and its suitability vis-a-vis the ISI. As regard quality of the imported goods in question, we find that there is clear understanding between the supplier and the appellant importer that the goods in question has more moisture content and therefore the quality of goods is inferior to the prime material and on that basis the supplier agreed to sell the goods at lower price. As against this fact, the revenue could not adduce any evidence to reject this fact. Therefore the claim of the appellant that the goods in question is ‘off grade’ is legitimate and convincing. Recovery of dues in view of CIRP proceedings under IBC - HELD THAT:- For the reason of aforesaid NCLT order in the appellant case and the above cited Apex Court judgments, the dues of the Government, including the present dues, if any, is not prima facie recoverable. However, since we decide this appeal on its merit and fact of the case, we do not incline to give conclusive finding on the basis of NCLT order. Decided in favor of importer / assessee.
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