TMI Blog2013 (6) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfilled the actual user condition and therefore, considering the larger environmental perspective, there is no need to accede the request of the appellant to release the goods for home consumption or ship stores. The attempt of the assessee that some item is available in the market and therefore this consignment R22 should be allowed for home consumption cannot be accepted. It is settled that the concept of equity cannot be pressed to commit another illegality. Also that the appellant took the plea before the Commissioner that they are able to procure the licence for import of R-22 but no licence was produced. The initial request of the appellant was to allow re-export which the adjudicating authority has allowed. Thus no merit in the appeals filed by the appellants. The Commissioner rightly allowed re-export upon payment of redemption fine and penalty. As Directors of the company and the appellant herein were involved for improper importation of goods and imposition of penalty under Section 112(a) of the customs Act, 1962 is justified. Accordingly, all the appeals filed by the appellants are dismissed and the adjudication order is upheld. - C/189 to 192/2012 - Final Order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not equipped for testing. He submits that in the facts of the case it is required to allow the cross-examination for the purpose of establishing the truth. Without prejudice to the above submission, it is contended by the learned counsel that the refrigerant gas R-22 is available freely and therefore it should be allowed for home consumption. In support of that contention he placed copy of cash memo of Customs Retail Sales Corner, Bangalore, Chennai and Tax invoices issued by the Customs Preventive Commissionerate. It is submitted that the appellant is incurring huge demurrage and therefore, it should be released immediately for the purpose of ship stores. 4. The learned AR vehemently opposes the prayer of the learned counsel. He reiterates the finding of the Commissioner. He points out that the appellant is a trader and not an actual user of the gas. The Government policy is to phase out import and use of this gas over a period of time. However, actual users can import it against specific licenses for some more time till alternatives are put in place. That cannot be reason to take a lenient view in the case of a trader. He submits that the importer admitted the mis-declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry are actually R-22, a refrigerant gas. (iii) Shri Rajesh Mehra, Appellant No. 2, Director of the appellant-company in his statement dated 8.12.2010 stated that they had not tested the gas till date and the technicians in their office checks the pressure of the gases by means of gauge machines for determining the pressure of the refrigerant gases imported by them. He stated that the imported gas was HCFC R-401A refrigerant gas, mixture of three blends of HCFCs and there is no mis-declaration. He also stated that the other Director Shri Ahamed should have used his better judgment in explaining HCFC - 401A. (iv) Shri Mohammed Gawher alias Sanjay, Director of the appellant-company, Appellant No. 4, in his statement dated 9.12.2010 stated that they have mis-declared the imported consignment as HCFC R401A instead of R-22 refrigerant gas and accepted the mahazar proceedings dated 7.12.2010. (v) By letter dated 10.12.2010, the appellant-company informed the DRI officers that upon your checking of our gas, we were shocked and surprised that their containers containing goods named as HCFC R-401A, turned out to be totally different gas. The same has been referred to our supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inders forwarded by you were tested with the available control sample with the aid of GC-MS, the most advanced instrument used for determining the purity of gaseous substances. GC-MS data were recorded for samples forwarded by you and available control sample, both the data were compared. GC-MS data for the samples forwarded by you exactly matches with GC-MS data of available control sample. Hence it is concluded from GC-MS data, that the samples forwarded by you is nothing but R-22 refrigerant gas. (x) The appellant by its letter dated 19.5.2012 stated that the report is totally silent on the values / results and method/equipment employed for test. The prayer of the appellant in the said letter is reproduced below:- a) Provisionally release the goods by taking samples and test it as per the Standard Testing Procedure given in page No. 80 of Reply to Show Cause Notice and permit us to cross-examine the expert before finally adjudicating the case by granting a hearing for making submission n account of cross-examination or b) For any reason, if it is not feasible, we request you to adjudicate the case, without further hearing, taking note of the oral / written submissions alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to release the cargo without further loss of time. It is requested that the appellant is a small scale industry and therefore a lenient view may be taken. The report of IIT, Madras indicates that it was tested with the aid of GC MS, the most advanced instrument used for determining the purity of gaseous substance using a control sample of R22 gas. 8. At the time of hearing before the Tribunal, the learned counsel on behalf of the appellant placed the e-mail communication dated 31.1.2013 and 1.2.2013. By communication dated 31.1.2013, the learned counsel enquired whether IIT, Madras would test the R22 refrigerant gas and by reply dated 1.2.2013, it is informed that IIT, Madras is not equipped for testing of refrigerant gas. This e-mail communication was not addressed in the context of report dated 2.5.2012, which has concluded from GC-MC data. Taking in account of the totality of the situation and particularly statements, evidences and request of the appellant before the adjudicating authority, we do not find any infirmity on refusal of cross-examination by the adjudicating authority. In our view, it would not violate the principles of natural justice. 9. There is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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