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2016 (3) TMI 840 - CESTAT NEW DELHI

2016 (3) TMI 840 - CESTAT NEW DELHI - 2016 (334) E.L.T. 686 (Tri. - Del.) - Demand of Safeguard duty - In terms of notification no.71/2009-Cus dated 10,06.2009 - Whether thickness of Aluminium foils imported is 7 micron or above or not - Assessee asked department to conduct test 3 times as he is not satisfied - Held that:- the argument of the assessee is not fully convincing regarding variation in different reports and it is not so easy to correctly determine the exact thickness of Aluminium Foi .....

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rds 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 - Section 114A of the Customs Act, 1962 - Held that:- penalty against the managing director of the assessee is not reduced. But .....

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53484 And 53548/2015-CU(SM) - Final Order Nos. A/53939-53941/2015-SM(BR) - Dated:- 21-1-2016 - B. Ravichandran For the Appellant : Ms Priyanka Goel, A53483dv. For the Respondent Rep by: Shri Vaibhav Bhatnagar, AR ORDER Per B Ravichandran These three appeals are against the order dated 9.6.2013 of Commissioner (Appeals), Jaipur and are taken up together for disposal. M/s. P.G. Foils Ltd. is the main appellant / assessee and the other two appellants are Shri Pankaj P. Shah, Managing Director of th .....

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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 Origi .....

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gned order upheld the Original Authority's finding on safeguard duty and confiscation. He, however, reduced the penalties to ₹ 10,00,000/-, ₹ 2,00,000/- and ₹ 1,00,000/- respectively on three appellants. Aggrieved by this order, the present appeals are filed. 2. Ld. Counsel for the appellants submitted that - (a) The CRCL Laboratory tests are not reliable as on a re-test different thickness was reported. The Lower Authorities have not taken into consideration the test repor .....

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ent test reports, it would have been proper to follow the tolerance level thickness 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 .....

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orted Aluminium Foils. Ld. AR submitted that the Lower Authorities have followed proper procedure in arriving at the conclusions. 4. Heard both the sides and examined the appeal records. 5. The only point for decision is whether or not the Aluminium Foils imported by the appellant/assessee is of thickness of 7 Micron or above in order to attract safeguard duty. The correctness of imposition of penalty on the appellant/assessee and two other individuals is also to be decided. 6. The admitted fact .....

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The appellant/assessee is contesting these findings on the ground that there are variation in different reports and it is not so easy to correctly determine the exact thickness of Aluminium Foil. I find that this argument of the appellant/assessee is not fully convincing. While the thickness in microns is to be ascertained 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 su .....

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