TMI Blog2018 (9) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... when the declaration was made as per the import documents issued by the supplier abroad? - Held that:- Though the goods have been released, it is only a case of provisional release and the Department having accepted the request made by the appellant for a re-test and the test report on the second test having gone in favour of the assessee and the benefit having been extended to the remaining goods, in our considered view, the transaction cannot be split up into two, more so when there is no notice issued to the assessee as to from which containers the samples were drawn at the first instance. The onus is on the Department to prove that the goods, which are contained in the containers are all different category than what was drawn for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in one lot? (ii) Whether the Tribunal had erred in upholding the imposition of penalty by holding that the appellant had misdeclared the description of the goods when the declaration was made as per the import documents issued by the supplier abroad? 4.The assessee imported two consignments of goods declaring the same as non-alloy heavy metal scraps. The first consignment was cleared making provisional assessment under Section 18 of the Customs Act, 1962 and the samples, which were drawn and sent for testing, vide test report dated 01.07.2005, were certified that the samples cannot be classified as non-alloy steels. 5.Immediately, the appellant filed a representation on 26.07.2005 to the Commissioner of Customs (Exports) reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of mis-declaration or wrong valuation. Although we have cleared 90% of the Cntrs, the scrap from these Containers is lying in our yard in Tirvottiyour and this can be inspected at any time. 6.The request, made by the assessee, was favourably considered and a second set of samples was drawn. By then, only two containers remained to be cleared and the other containers were cleared by the Customs. The result of the second test, vide test report dated 21.08.2005, was in favour of the assessee. There is no dispute on this fact. In the light of the finding recorded by the Commissioner in Order-in-Original dated 06.10.2005, in paragraph 15 therein, the present proceedings arose out of an Order-in-Original, by which the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the entire goods, which are covered in that consignment/bills of entry are of such nature. The onus is on the Department to prove that the goods, which are contained in the containers are all different category than what was drawn for the purposes of making test. If such is the allegation, then it would amount to a case of concealment or wilful mis-statement with an intention to smuggle the goods. In the absence of any such allegation, the benefit of the second test report ought to have been granted to the assessee in respect of the entire goods, which were imported vide two bills of entries. Interestingly, in respect of subsequent bill of entry for the same product, the Department had drawn samples and conducted a test and by report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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