TMI Blog2017 (12) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... The cross examination or request for referring the matter to the expert laboratory should be made at the very first time and if such request is made then only the laboratory should decide thickness, quality after physical verification of the product. However, such request cannot be made the appellate stage. In the present case, if the appellant would have made such request at the first stage then it could have been open for the authority to send the product for further examination at the cost of the appellant. However, in the present case, no such request was made and therefore, the authorities upto the tribunal have correctly accepted the report of Shriram Institute. Reference to Tolerance Limit - Whether non grant of tolerance limit factor in the micron calculation as fixed by BIS (Bureau of Indian Standards) makes the report unreliable specially when there are contradictory results of highest order in the different reports? - Held that:- Benefit of tolerance limit cannot be granted to the appellant and the liability of duty is ascertained as per actual thickness of the product. Personal penalty U/S 114A of CA - Held that:- The appellant has bonafidely imported products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellant to suppress, misstate, fraud, collude with intention to evade payment of duty? (II) Whether simultaneous penalty on the importer company and for imposition of personal penalty on its Director who is an employee is justified in the facts and circumstances of the case? 4. The facts of the case are that the appellant is mainly engaged in the manufacture of Aluminum Foils, Lamination and printing thereon. The appellant imported the consignment of 103924.50 kgs vide invoice No.00317283 dt. 29.7.09 and filed the Bill of Entry No.082 dt. 28.8.09 (wherein the value of ₹ 1,66,38, 696/- was declared) alongwith the relevant invoice, packing list issued by the exporter M/s. Jiangsu Zhongji Lamination Material Co. Ltd., Jiangsi Province, China and Certificate or Origin No.CCPIT 093930424 issued by the Chinese Authorities. 4.1 The Cargo related to said Bill of Entry No.082 dt. 28.8.09 was examined by the Customs Officers on 3.9.09 and on examination, quantitites of the goods were found as per Bill of Entry, Invoice Packing List. As the thickness of the Aluminium Foil in micron could not be ascertained by visual inspection of the imported material, therefore, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion is aluminum foll of very fine thinness, which is beyond measurement by naked eyes and has to be measured in the unit namely Micron by the help o sohisticated machine in non humid controlled temperature by the experts on a untouched, fresh and virgin sample without any exposure to external environment, it is noteworthy to mention that the test can be conducted by some experts with metallurgical back ground. They are in this industry since long and have gathered good experience as such they are certain that some where some mistake has crept in because such vast variation are just not possible. They enclosed copy of test report issued by M/s. Specto Analytical Labs on the sample provided by them. 11. The importer again vide letter Number PFG/IMP/5929 dated 27.03.2010 submitted reply in their defence, wherein alia, it has been contested that:- The noticee is manufacturer of Aluminum Foils and for the said purpose they have imported Aluminum Foils vide BOE no. 82 dated 28.08.2009 through ICD Jodhpur. The said goods were imported from Peoples Republic of China on which vide Notification No.71/2009 dated 19.06.2009 w.e.f. 23.03.2009 safeguard duty @ 30% was imposed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half year they are exporting only below 7 Micron Aluminum Foil to India. They are not only exporting to them but to many more parties in India and confirmed that no party has reported them that their material is more than 7 micron (copy of the letter and list of Importer was enclosed). Recently, they have Imported Aluminum Foil at Delhi Port from M/s Kunshan Aluminum Co. Ltd. And testing of the same has been done by Shri Ram Institute which shows that material is less than 7 micron. So from the above supporting it is clear that they have imported less than 7 micron Aluminum Foil only as party is exporting only that type of material to India and CRCL report on the same is misleading and cannot be relied upon. Vide their letter dated 8.10.2010 to the Deputy Commissioner of ICD they have requested for sending the goods under test memo for calculation of Micron to the experts like Shri Ram Institute, Delhi who are having expertise and Infrastructure in the similar field, at their cost from the samples drawn by the department. The said request has yet not been considered but instead a show cause notice and final assessment order is being issued to them by revenue in a blased manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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/assessee imported Aluminium Foils from China and declared their thickness as 6 Micron. The samples were drawn and tested by CRCL Laboratory and again re-tested on appellant/assessee's requested by the same laboratory. Again, as per insistence of the appellant/assessee's request by the same laboratory. Again, as per insistence of the appellant/assessee, the test was done for the third time in another independent laboratory. It is to be noted that all these test reports indicated the thickness of imported Aluminium Foils as 7 micron or above. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. 17. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decisions of Gujarat High Court regarding cross examination and referred to the following judgments:- 1. Arunodaya Mills Ltd. and anr. vs. Union of India and anr. 1985 (21) ELT 390 (Guj.), 2. Manek Chemicals Pvt. Ltd. vs. Union of India 2016 (334) ELT 302 (Guj.) 3. Savino Micron (India) Pvt. Ltd. vs. Union of India 2017 (351) ELT 250 (Guj.). 7. Counsel for the respondent Mr. Pathak has taken us to the record and has stated that there was no objection filed before Adjudicating authority after the report from Shriram Institute. He also contended that there was no request for cross examination before the adjudicating authority and he has referred to the findings of Shriram Institute report. 7.1 He has further contended that after Shriram Institute report no cross examination was sought for before the adjudicating authority and for the first time, at the appellate stage, the appellant requested for cross examinations i.e. before Commissioners (Appeals), thus, the tribunal rightly rejected the contention of the appellant. 7.2 He further contended that view taken by the tribunal is just and proper and thickness of the aluminum foil was found to be 7 and more mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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