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Commissioner of Customs, Amritsar Versus M/s. Maya Enterprises Shri Anil Kumar, Proprietor

2017 (12) TMI 403 - CESTAT CHANDIGARH

Mis-declaration of imported goods - undervaluation - palm acid oil, palm fatty acid distillate and palm stearin - whether there was any misdeclaration of the description of imported goods? - Held that: - there was a cross-examination of the Chemical Examiner as well as the Joint Director. The samples of the goods were also got tested by the Revenue from Sri Ram Institute for Industrial Research, New Delhi. We find that the ld. Commissioner has correctly analysed the findings in the test report w .....

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asons to uphold the charge of the Revenue. - Appeal dismissed - decided against Revenue. - Appeal No. C/60461, 60463/2013-DB - Final Order No. 62118-62119 / 2017 - Dated:- 5-12-2017 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Tarun Kumar, AR for the Appellant- Revenue None for the Respondent ORDER Per : Devender Singh The Revenue has filed these appeals against the impugned order of Commissioner. 2. The brief facts of the case are that, on the bas .....

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jected to chemical testing and statements of various persons including the indenters-cum-brokers from Malaysian suppliers and the proprietor of appellant were recorded. A show cause notice dated 05.01.2009 was issued to the appellant proposing enhancement of the value from ₹ 8,26.156/- to ₹ 16,21,974/-, confiscation of the goods under Section 111(d) and (m) of Customs Act and penalties under Section 112 and 114A of the Customs Act. The matter was adjudicated and in the adjudication o .....

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ence between the Mixed Fatty Acid and PFAD and stated that the appellants themselves admitted in their defence that their product Mixed Fatty Acid was obtained as a by-product from refining the crude palm oil and accordingly with reference to the range given in Bailey s Industrial Oil and Fat Products, the subject goods were PFAD. He also referred to the report from Malaysian Palm Board available on open source. Ld. AR further argued that though the product has been declared as Mixed Acid Oil, t .....

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-tested instead of dropping the proceedings on the basis of incomplete report. 4. After having heard the ld. AR, we find that there are two issues which required to be answered in the present appeals. The first issue is, whether there was any misdeclaratin of the description of imported goods. In this regard, we find that the samples drawn from the consignment were got tested from CRCL New Delhi. The report of CRCL is as under:- In this regard, it is stated that the Test Reports forwarded pertai .....

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l in some cases. The reports issued by this laboratory are self explanatory. However, on the basis of the test conducted none of the products under reference conforms to the specification of Acid Oil per the IS 12029 : 1986 nor it meets the requirements of any single vegetable oil, Vanaspati or fatty acid. Each is composed of vegetable oil/ vegetable oil with partial hydrogenation, free fatty acid and unsaponifiable matter. On the perusal of the literature and analytical reports, it appears that .....

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ion. The ld. Commissioner observed as under:- 32. The noticee s imports included a live consignment of impugned goods which was seized by the DRI, apart from those which had already been cleared in the past and perhaps disposed off. The live consignment had been declared as mixed acid oil ; was suspected to be stream by the DRI; but was reported by the CRCL to be residue , resulting from treatment of fatty substances. Though categorically ruling out the impugned goods to be acid oil, for these d .....

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ts, the CRCL had advised ascertainment of some other facts, including end use of the impugned goods and their source, before final assessment. However, those facts were never ascertained. Also, though in their clarificatory report the CRCL opined that such products are generated as residues from treatment of fatty substances or refining as indicated in the HSN 15.22(B) at the time of his cross-examination the CRCL examiner refused to classify the impugned goods under HSN/Customs Tariff, admittin .....

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rector). They could/did not explain logically why in their view, the sampled goods were residue and why these were not mixed acid oil. In fact they could not differentiate the one from the other. The charge of misdeclaration of description of impugned (seized) goods against the notice in these circumstances made no sense at all. 34. The story with respect to the past imports is no different either. The show cause notice has, as noted in Para 15 supra, regarded all consignments of palm fatty acid .....

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required to be done was to define the parameters/standards of palm fatty acid as well as PFAD, bring out the difference between the two and show how and why the test results favoured classification of the goods as PFAD and not as palm fatty acid. That having not been done, I wonder how the notice can be charged with misdeclaration of the goods. With regard to the reasoning given by the ld. Commissioner that experts of CRCL has not conclusively stated whether the samples of the goods were residue .....

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Shri Anil Kumar Arora, both are indenter and broker, as in the present case. In the said case also the Revenue had relied upon the Export Price Bulletin prices issued by Malaysian Palm Acid Board, as in the present case. In those set of facts, the Tribunal has held that there is no direct evidence indicating that the price reflected on the invoices is not the correct transaction value. We find that the ld. Commissioner has rightly relied on the above said case. In this regard, Para 8 to 10 of th .....

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