TMI Blog2007 (6) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... le Oil (HVO) was edible grade . The consignment was loaded in 15 containers and sent to ICD, Ludhiana. While in transit, goods in 10 containers were sold to appellant M/s. Super Tech Agro Private Ltd. 4. Both the appellants filed bills of entry on 17-6-2006 before the Customs at Ludhiana for the clearance of the consignments. 3 containers were released to M/s. Super Tech Agro Oils Pvt. Ltd. Subsequently, another 5 containers were also released (4 containers to Super Tech and 1 container to Super Overseas) on 18-9-2006, in terms of the order dated 12-9-06 of the Hon ble High Court of Punjab and Haryana. The remaining 7 containers load remains confiscated under the impugned order. 5. While show cause notice dated 19-10-2006 alleged violation of DGFT Notification dated 2-6-2006 as well as violation of sub-sections (d), (m) (o) of Section 111 of the Customs Act, in view of the subsequent DGFT Notification dated 11-9-2006, the objection in terms of DGFT Notification has been dropped and the confiscations made in terms of Section 111(d), (m) (o) of the Customs Act in the adjudication. 6. The finding in the impugned order is that the samples of HVO from the containers were test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import for use in industrial products. The learned Counsel would point out that the only difference in regard to Sri Lankan imports is with regard to rate of duty and no prohibition under law is involved. 10. As regards the test reports, the submission of the learned Counsel is that it is well settled that test reports of an authorized government laboratory cannot be rejected. Reliance, in this connection is placed on the judgment of the Hon ble Supreme Court in case of Reliance Cellulose Products Ltd. vs. Collector of C. Ex., Hyderabad as reported in 1997 (93) E.L.T. 646 (S.C.), wherein the Hon ble Supreme Court held as under :- "12. These orders are now under challenge before this Court. We were referred to a number of test reports obtained by the appellant from various persons and on the basis of these opinion, the reports of the Departmental Chemical Examiner and also the Chief Chemist were assailed. We are of the view that the Assistant Collector cannot be said to have erred in relying upon the reports given by the Chemical given case, the report of the Chief Chemist may be demonstrated to be palpably wrong. In such a case, the Court may direct re-examination of the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner was decried by the CEGAT was that by the time the test was conducted on 10-12-1997 the sample would have polymerized. This was said in view of the report of GSFC Ltd., which had given similar opinion regarding a sample sent to it at a late stage. In our view this reasoning of the Tribunal is not correct. If the test was not possible, the testing authority could have said so rather than going ahead with the test. The test was conducted in the presence of the Commissioner and other Departmental representatives. It shows that the test was possible. The Tribunal has not given any cogent reason for rejecting, the reports submitted on behalf of the appellant according to which the goods in question are established to be regenerated second grade MMM. In fact, it was vehemently argued before us that identical goods were allowed to be cleared by the Customs Department at other ports/ICDs as regenerated second grade MMM. This argument remained unrefuted and undisputed. 12. An important fact overlooked by the Tribunal is that because of an earlier report of the CRCL with respect to the Delhi consignment to the effect that it was unable to test the samples for regenerated second g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. It is also being pointed out that separate penalty is not imposable on a firm and its partner. 16. Learned SDR would contend that the appellant had accepted the impugned order which granted them permission to release the goods for export. It is his contention that after having accepted such a conditional redemption opportunity, they cannot challenge the confiscation in appeal. He would rely on the decision of the Larger Bench of this Tribunal in the case of Hemant Bhai R. Patel v. CC, Ahmedabad as reported in 2003 (153) E.L.T. 226 (Tri.-LB) in support of his contention. 17. As already noted, the confiscation in the present case is for violation of the provisions of Section 111(d), (m) and (o) of the Customs Act. The violation found is that the HVO consignment did not conform to the requirements under Food Adulteration Act. That finding is entirely suspect. The authorities had cleared 3 containers without any test at all. Subsequently, samples were sent to 3 laboratories and all the 3 laboratories had agreed in regard to the quantities loaded in 5 containers. In relation to the remaining 7 also, the analysis in Punjab Food Laboratory, Chandigarh had found the samples to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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