TMI Blog2016 (3) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... competent labs including a private independent competent lab is not having facility or expertise to conduct such tests. None of the reports indicated any figures nearer to 6 Micron as declared by the assessee while importing the impugned goods. Also the assessee placed a reliance of 8% tolerance limit prescribed by the Bureau of Indian Standards of Aluminium Foil but the standards prescribed there are for the quality purpose and have no relevance to determine the correct thickness and thereupon tax liability based on such thickness. It is to be noted that the samples were re-tested twice with a request and concurrence of the assessee in approved laboratories. Therefore, the assessee is liable to pay safeguard duty. Imposition of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were drawn in order to ascertain the thickness of the Aluminum Foils and were sent to Central Revenue Control Laboratory, New Delhi for test. CRCL reported on 17.09.2009 that the Aluminium foils are having average thickness of 14.4 and 7.4 Micron. A show cause notice dated 25.02.2010 was issued to the appellant /assessee for demanding safeguard duty of ₹ 49,91,609/- in terms of notification no.71/2009-Cus dated 10,06.2009, as the imported Aluminium Foils are having thickness of 7 or more Micron. Proposals for imposing penalties on the appellants /assessee and the other two appellants herein were also made. The case was adjudicated. The Original Authority vide order dated 5.1.2012 confirmed the demand of safeguard duty as above; hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess as 8% plus or minus, fixed by the Bureau of Indian Standards for Aluminum Foils. If such tolerance level is adjusted, their product will be considered as having thickness of less than 7 Micron. (d) The appellant/assessee was not provided an opportunity to cross examine the persons, who gave the test reports and hence, the principles of natural justice was not followed. 3. Ld. AR strongly contested the submissions of the appellants, He submitted that the samples were drawn as per the prescribed procedure and there is no dispute about the method adopted for sampling. These samples were sent to competent approved laboratory of CRCL for testing. When the appellant/assessee wanted the re-test be conducted, the same was also done. On fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certained by the accurate scientific methods, it is not contested that the competent labs including a private independent competent lab is not having facility or expertise to conduct such tests. None of the reports indicated any figures nearer to 6 Micron as declared by the appellant/assessee while importing the impugned goods. 7. The appellant /assessee placed a reliance of 8% tolerance limit prescribed by the Bureau of Indian Standards of Aluminium Foil. I find that the standards prescribed are for the quality purpose and have no relevance to determine the correct thickness and thereupon tax liability based on such thickness. Regarding cross-examination of persons, who tested the samples, I find such plea has been made in appellate sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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