TMI Blog1984 (7) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 mm and 6 mm thickness. On examination of the documents produced by the appellant viz., photo copy of the Mills Test Certificate, the lower authorities had observed that due to lower content of silicon the goods could not be considered as Killed quality M. S. Plates and was not in conformity with the Import licence of the appellant. On the basis of the invoice the Custom Authorities had allowed (the clearance on a license bond executed by the appellant on the 13th day of August, 1971 stipulated therein to produce proper documentary evidence to prove that the goods were in fact of Killed Quality and thus covered by the license. The appellant had also undertaken to abide by the test result. Accordingly, two representative samples of the goods were sent to the Director General, Supplies Disposals, Jamshedpur. The samples were taken in the presence of the party s representative along with the relative invoice. The respondent, the Collector of Customs had received the Report No. 564, dated the 29th October, 1971 from the Director General, Supplies Disposals, Jamshedpur with the following observations :- Sample No. 1... Semi Killed variety thickness - 5.05 mm. Sample No. 2... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifest to ascertain whether any similar consignment of 7.90 mm. had been imported by any other party. The learned Collector of Customs, Calcutta had held that the samples were drawn in the presence of the representative of the assessee along with relative invoice and on the basis of the test report from the Director General, Supplies Disposals, Jamshedpur, had held the importation of the goods without proper licence. The learned Collector of Customs had imposed a penalty of ₹ 41,500.00 under Section 112 of the Customs Act, 1962. Being aggrieved from the aforesaid order the appellant had filed an appeal before the Central Board of Excise Customs, New Delhi. The appellant had requested the Hon ble Board to dispense with the payment of the penalty of ₹ 41,500.00 till the disposal of the appeal. The Hon ble Board did not accede to the request appellant as to the dispense the payment of the penalty in terms of old Section 129 of the Customs Act, 1962 and had intimated the same vide their letter dated the 17th September, 1973 to the Solicitors of the appellant requesting them to inform their clients that they should deposit the penalty amount and furnish the particulars to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned to dispose of the Revisional Application as filed in accordance with law. Till such determination is made, the impugned order at page 69, should not be given effect to. 3. Shri Sardar Amjad Ali, the learned senior Advocate with Shri Debasish K. Sinha, Advocate, has appeared on behalf of the appellant. He has reiterated the facts. In particular he has mentioned that the Hon ble High Court had granted a stay in respect of the payment of penalty of ₹ 41,500.00 and the operative part of the said order appears on page 25 of the Paper Book and the Hon ble High Court had directed the then Revisional authority to decide the revision application in accordance with the law and had further directed that till such determination the Government s order dated the 1st March, 1974 shall not be given effect. He has pleaded that the order dated the 1st March, 1974 relates to the requirement as to the payment of penalty of ₹ 20.750/- for the compliance of the provisions of Section 129 (now repealed) of the Customs Act, 1962. The learned Advocate has pleaded that since the stay has been granted by the High Court, this Court should not insist for the pre-deposit of the penalty amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that as per certificate of the Director General, Supplies, Disposals, Jamshedpur, the report in respect of sample No. 1 is that the silicon content is less and however, the sample is compatible with that of semi-killed variety. But if the consignment is declared to be aluminum killed; the requirement of minimum silicon content does not apply and the steel maker s furnace charge, report alone can reveal whether the steel is aluminum killed or not. The thickness of the plate has been mentioned as 5.05 mm. Whereas in sample No. 2 the same chemical expert has observed that the steel is graded as killed quality but the thickness of the plate is 7.90 mm as declared in the attached sheet. He has submitted that in the 1st sample the quality does not tally but the thickness tallies, whereas in the 2nd sample the quality tallies but the thickness does not tally. He has stated that on the basis of the test report the learned Collector of Customs, Calcutta had issued a show cause notice which appears at page 1 of the Paper Book. He has also referred to the reply to the show cause notice which appears on page 3 of the Paper Book. He has submitted that no expert can give an opinion as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence is Primems. S. Tested Plates 5 mm and 6 mm Thick Killed Quality and the imported items are not in conformity with the licence. The learned SDR has laid great emphasis on the bond executed by the appellant, which appears at page 74 of the Paper Book. He has referred to the words and shall abide by any test result conducted on the representative sample and the decision taken thereof. He has referred to the test result which appears at page 79 of the Paper Book. He has pleaded that the results of both the samples are not in conformity with the description of the items as mentioned on the Import licence. He has pleaded that the Custom Authorities have taken a very lenient view and as such the appeal filed by the appellant should be dismissed. 5. In reply Shri Sardar Amjad Ali, the learned Senior Advocate has again laid great emphasis on the test report which appears at page 79 of the Paper Book. He has submitted that it is not clear whether it is aluminium killed or silicon killed. Lastly he has pleaded that the show cause notice which appears at page 1 of the Paper Book is for the contravention of the provisions of Section 3 of the Imports Exports Control Act, 1947 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them as yet. Jamshedpur Test Report gives categorical opinion about the quality and thickness of the goods. The question of seeking further comments either from the Directorate General of Supplies Disposals, Jamshedpur or Indian Standards Institution as desired by the party does not arise. Further, the representative samples of the goods were drawn in presence of the party s representatives along with the relative invoice and as such the importer s contention that sample was not drawn from their consignment does not hold good. Therefore, in view of the test result of the goods, the importation of the above goods, is held unauthorised against the license produced. No case law has been cited by any side. It is a settled law that principles under the Evidence Act are applicable for the enforcement of the taxing statutes. The Hon ble Supreme Court had held in the case of Collector of Customs, Madras v. D.Bhoormull reported in AIR 1974 S.C. 859 that the Collector of Customs is to be guided by the basic canons of criminal jurisprudence and natural justice. The Hon ble Mr. Justice R.S. Sarkaria speaking on behalf of the Court had observed in para Nos. 26 and 44 of his order as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do, or of knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant. 46. Facts bearing upon opinions of experts. - Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. Illustrations (a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be symptoms of that poison, is relevant. (b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The Hon ble Bombay High Court in the case of Parwat Patil v. Sukdev Shimram Patil reported in AIR 1956 Bombay 617 has held that the report of an expert is not admissible unless he has been examined as witness and the party affected by it has had an opportunity of cross examining him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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