TMI Blog2017 (3) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods, where there are rival claims by both the sides, do not have sufficient credibility and cannot be made conclusively applicable to the subject goods. Therefore, the Revenue's case on misdeclaration of the description of goods cannot be sustained - Appeal allowed - decided in favor of appellant. - E/75, 76, 98 & 99/07 - FO/A/76419-422/16 - Dated:- 20-12-2016 - Satish Chandra, President And Shri Ashok K. Arya, Member (Technical) Sri A.N.Trivedi, Advocate for the Appellant Sri S.K.Naskar, AC(AR) for the Respondent ORDER Per: Shri Ashok K. Arya 1. The following four appellants - i) M/s. Ellenbarrie Exim Ltd. ii) Subhas Ch. Agarwala iii) M/s. S.F.Forgings Pvt. Ltd. iv) Shri Kishan Dhanuka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r were allowed for export under Section 51 of the Customs Act after representative samples were drawn from export goods. These goods were got tested from M/s. Superintendence Company of India (Pvt.) Ltd., a Govt. recognized entity; and were also got tested from Customs House Chemical Laboratory and National Test House, Kolkata. 3.2.The Revenue's stand is that the test reports confirmed that goods were Hot Rolled Low Carbon Steel Billets instead of Non-Alloy Steel Forgings (Rough) as declared by the appellant in the export documents. The goods were allowed for export provisionally after drawl of samples. 3.3.The Revenue doubts the capacity of production of the appellant manufacture's unit namely M/s. S.F.Forgins Pvt. Ltd., Ghus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were neither dutiable nor prohibited. The question of confiscation or imposition of fine or penalty does not arise as per following case laws: i) 2000(121) ELT 819 (T); Prayag Export Pvt. Ltd.-Vs.-CC, Mumbai. ii) 2003(155) ELT 4 (SC); CC Mumbai Vs.- Prayag Exports Pvt. Ltd. iii) 2005(189) ELT 446 (Tri-Mumbai) Ramayan Empex Vs. CC Exports Nhava Sheva iv) a) Para2 of the SCN says sample was drawn from B/E 2913 dated 18.2.05. Endorsement on the Shipping Bill says sample was drawn on 04.03.05 (PB-198-199). However, the report of the Superintendent Company of India Ltd. was procured on 28.2.05 ; therefore because of mismatch of dates the reports is of no consequence. b)Further the above lab is not a metallurgical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (Pvt.) Ltd. is of no consequence on the face of the fact that on the Shipping Bills, samples have been shown to have been drawn on 4.3.2005, whereas the report of M/s. Superintendence Company of India (Pvt.) Ltd. is dated 28.2.2005 and the said report refers to the forwarding letter of the Revenue as No.16/Kol/APP/2005/910 and dated 21.02.2005, which again predates the sample-drawn date. Considering these discrepancies this report is of no consequence and further it has also been argued that this institution namely M/s. Superintendence Company of India (Pvt.) Ltd. is not a metallurgical laboratory and they do not carry out any metallurgical test. Further in the remarks these reports mention that the sample is 'billets'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cription of the goods, where there are rival claims by both the sides, do not have sufficient credibility and cannot be made conclusively applicable to the subject goods. Therefore, the Revenue's case on misdeclaration of the description of goods cannot be sustained. 10. Further on the capacity of production of the factory of manufacturer appellant there is only one report from one Chartered Engineer namely Mr. Hiranmoy Chatterjee and the contents of the report also have been contradicted as mentioned by the manufacturer appellant namely M/s. S.F.Forgings Pvt. Ltd. Therefore, revenue's case on the basis of said report of Chartered Engineer, which does not have full credibility, cannot be sustained. The Revenue is attempting to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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