TMI Blog2013 (9) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... COF showing absence of bio-organic fertilizer in the given sample was not a reliable evidence - even the lower appellate authority held that the burden of proof was on the department to classify the goods and this burden was not discharged – order set aside – decided in favour of assessee. - C/2342 & 2351/2012 - 25040-25041/2013 - Dated:- 11-2-2013 - P G Chacko, J. For the Appellant : Mr Vijay Kumar, Adv. For the Respondents : Mr N Jagadish Mr S Teli, ARs. Per: P G Chacko: These appeals are directed against an order passed by the Commissioner (Appeals) sustaining the original authority's order with minor modifications. 2. M/s Pasura Life Sciences Pvt. Ltd. (PASURA for short) are aggrieved by (a) absolute confiscation of the goods imported by them and (b) imposition of penalty of Rs.20,000/-. M/s Viswas Business Synergies Pvt. Ltd. (VISWAS for short) have challenged the penalty of Rs. 7,500/- imposed on them by the lower appellate authority. PASURA had imported from a Vietnamese company certain goods declared as "BIO-ORGANIC FERTILIZER LIQUID" and classified under Heading 3101 00 99 of the First Schedule to the Customs Tariff Act. They claimed clearance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Kumar and P.V. Mohan Rao) to show cause against penalties proposed under Section 114AA of the Act. PASURA and VISWAS replied in identical lines to the show-cause notice in February 2012 raising a series of objections. With reference to the test report of the Regional Director, RCOF, they requested for cross-examination of Dr. Krishan Chandra, Regional Director, RCOF. In adjudication of the dispute, the original authority, after turning down the request for cross-examination but giving the party an opportunity of being heard, ordered absolute confiscation of the goods and imposed penalties - Rs. 20,000/- on PASURA and Rs. 10,000/- on VISWAS under Section 112(a) of the Customs Act, and Rs. 5,000/- each on Shri Ravi Kumar and Shri Mohan Rao under Section 114AA of the Act. The appeals filed by PASURA and VISWAS gainst the order-in-original came to be rejected on merits. Hence the present appeals of the two parties. 3. Heard both sides. The submissions of the learned counsel for the appellants can be summarized as follows: a) The burden was on the department to identify the goods before dubbing it as "prohibited goods". This burden was not discharged by the department successfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In his statement, he did not impugn the test report on any ground. It is not the case of the appellant that RCOF was not competent to test the sample for presence of bio-fertilizer. They did not ask for any retest either. No good reason was assigned by PASURA for their request for cross-examining the Regional Director of RCOF. In these Circumstances, the evidentiary value of Dr. Krishan Chandra's report cannot be discounted. b) Even a reply to the show-cause notice was given after one year. The request for cross-examination as made in such belated reply was rightly held to be the result of an after-thought, particularly when there was no objection to the test report in the statement of Shri Ravi Kumar. c) The fact that similar goods imported in the past were allowed to be cleared for home consumption did not per se affect the case of the department adversely. d) The supplier's catalogue, which was promised to be produced, was never produced by the importer. The literature dated 1-10-2010 produced by them pertains to a product called "Vedagro" and the same has not been shown to be related to the subject goods inasmuch as the importer did not declare the goods in the Bill of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials available on record, the findings recorded by the original authority and affirmed by the appellate authority cannot be sustained. 7. As both the authorities chose to rely on both the test reports, I shall proceed to examine the reliability of the test reports, first. The test report of IICT indicates that they were required to find out whether any pesticide was contained in the given sample. The analysis result was negative. The report mentions two enclosures viz. ESI-MS mass spectrum and GC-MS chromatogram, neither of which is available on record. In any case, the absence of pesticides has not been shown to constitute a singular ground for holding the imported goods to be prohibited in terms of Section 111(d) or to have been misdeclared in terms of Section 111(m) of the Customs Act. The report of the Regional Director, RCOF merely says that "the sample was tested and found that it does not belong to the bio-fertilizer." As rightly pointed out by the learned counsel for the appellant, this report is silent on who actually tested the sample, what technique was used for testing, what results were obtained on testing and how the results were interpretted. Ordinarily, the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other law for the time being in force. I have already taken the view that the report of RCOF showing absence of bio-organic fertilizer in the given sample is not a reliable evidence. Even the lower appellate authority has held that the burden of proof was on the department to classify the goods and this burden was not discharged. If that be so, the question arises as to how the goods could be considered as prohibited goods and as to how the goods could be held to have been misdeclared by the importer. Without ascertaining the correct identity of the goods, one cannot hold it to be prohibited or to have been misdeclared. Therefore, the goods in question cannot be confiscated in terms of clause (d) or clause (m) of Section 111 of the Customs Act and the importer cannot be held to have rendered the goods liable to confiscation. The charge against VISWAS is that they abetted the offence of PASURA. As the finding against PASURA that they rendered the goods liable to confiscation and attracted penalty under Section 112 of the Act is unsustainable, the finding of abetment recorded against VISWAS is equally untenable. 10. In the result, the impugned order is set aside to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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