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TMI Blog2013 (9) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... r documents filed with the Bill of Entry also indicated the name of the goods as "BIO-ORGANIC FERTILIZER LIQUID". These documents included a high seas sale agreement and the connected invoice, which indicated that the goods were purchased by PASURA at the high seas from VISWAS who had purchased the goods from the Vietnamese company. Officers of the Directorate of Revenue Intelligence (D.R.I.) obtained intelligence to the effect that PASURA had imported some unknown material by misdeclaring it as bio-organic fertilizer. They inspected the consignment, drew samples of the goods and sent them to the Regional Centre of Organic Farming (RCOF), Bangalore and the Indian Institute of Chemical Technology (IICT) for testing for presence of bio-fertilizer and pesticide respectively. The D.R.I. obtained a report from the Regional Director, RCOF reading thus: "With reference to the sample of M/s Pasura Life Science Pvt. Ltd sent by you for testing, I am to inform that, the sample was tested and found that it does not belong to the Biofertilizer." They also received a report from the Director, IICT, which was to the effect that the sample did not contain any pesticide. Subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate authority is based on the test report of the Regional Director, RCOF. The report does not disclose as to who analyzed the sample, what method was used for analysis, what were the results of analysis and in what manner such results were interpreted so as to reach a conclusion to the effect that the sample was not a bio-fertilizer. In the absence of such essential particulars, the so-called 'test report' should not have been relied upon. b) The department did not, at any stage, disclose the reason for not sending the samples to their own chemical laboratory. They could have got the samples tested in their own chemical laboratory, in which event, if the test result turned out to be adverse, the appellant could have requested for retest by the Central Revenue Chemical Laboratory (C.R.C.L.). Such options were virtually denied to the importer by the department by sending samples to outside laboratories. c) The request of the importer for an opportunity to cross-examine Dr. Krishan Chandra, Regional Director, RCOF was rejected by the lower authorities without any valid reason. d) Identical commodity was imported by PASURA in the past also vide Bill of Entry No. 2081475 dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter 32%, nitrogen 4.5% and potassium 2.7% does not per-se prove the goods to be a bio-organic fertilizer. e) Shri P.V. Mohan Rao, Director of VISWAS has stated that the goods imported by PASURA had emerged as waste during the course of manufacture of glutamic acid in Vietnam and such waste was sold in the market at a low value. 5. In his rejoinder, the learned counsel for the appellants submits that, even if it be assumed that the commodity was treated as a waste by the overseas supplier, this ipso facto would not render it hazardous. In the present case, though the original authority considered the goods as hazardous waste, the appellate authority did not agree. The learned Commissioner (Appeals) has clearly held, in para 12 of the impugned order, that the department had the burden to prove the goods to be hazardous but failed to discharge this burden and hence the imported goods could not be classified as hazardous waste in terms of the relevant circular issued by the C.B.E.C. 6. I have given careful consideration to the submissions. The show-cause notice in this case proposed to confiscate the goods in terms of Section 111(d) and Section 111(m) of the Customs Act on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight have tested the sample. The Regional Director's letter does not disclose the name of the analyst. It merely states that the sample was tested and was found to contain no bio-fertilizer. It contains no reference to any test memo issued by D.R.I., nor does it otherwise indicate the purpose of test. It was in this scenario that the importer wanted to cross-examine Dr. Krishan Chandra but this plea was rejected by both the lower authorities. Given the above facts, the importer's plea for an opportunity to cross-examine Dr. Krishan Chandra should have been favourably considered by the lower authorities. The reason stated by those authorities for turning down the importer's request is far from impressive. In the result, the reliance placed by the lower authorities on the report of RCOF, which looks like a one-liner, is futile. 8. The learned counsel for the appellants has questioned the propriety of sending samples to outside laboratories. The Superintendent (A.R.) has endeavoured to get over the objection by submitting that the D.R.I. was in correspondence with the C.R.C.L. It was eventually learned that the department's chemical laboratories did not have the facility to test any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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