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Shri Bharat Singh, Authorised Signatory, Pankaj P Shah, Managing Director, PG Foils Ltd Versus Commissioner of Customs, Jodhpur

2016 (3) TMI 840 - CESTAT NEW DELHI

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 Foil. While the thickness in microns is to be ascertained by the accurate scien .....

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termine 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 the penalty imposed on Authorised Signatory is not justifiable being a sala .....

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ated:- 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 the appellant company and Shri Bharat Singh, Authorised Signatory of the appel .....

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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 du .....

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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 reports conducted by the independent Analyst of M/s. Spectro Analytical Labs Ltd. .....

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ickness 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 pres .....

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owed 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 facts of the case are that the appellant/assesee imported Aluminium Foils from C .....

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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 such tests. None of the reports indicated any figures nearer to 6 Micron as de .....

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