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2019 (5) TMI 1032

..... um Meta Bi Sulphite - Benefit of N/N. 21/2002 Cus. Dt. 01.3.2002 - benefit of notification denied on the basis of test report of samples relating to few consignments could be applied to the consignments imported and cleared in the past be denied. HELD THAT:- Not only on the basis of chemical test report but also relying upon the statement of Shri Dilip Patel, authorised signatory of the Appellant, the Adjudicating authority had concluded that the sample of imported papers when subjected to chemical test, found to be free from Sodium Meta Bi Sulphite. Consequently, he has held that the Appellants are not eligible for benefit of exemption Notification No.21/2002- Cus, dt.1.3.2002. Also, reading the opinion of UDCT, Mumbai, there is no contra report to the test results of CRCL, New Delhi. In the said report, the method of testing of samples has been narrated. There is no opinion about the contents of the samples. Therefore, the said reports also would not be of any help to the Appellant. The learned Commissioner extrapolated the test results of the samples to the consignments which were imported and cleared in the past. In absence of any adverse test report of the samples relating to .....

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..... ical test of the consignment imported against Bill of Entry No. 567313 dated 10.05.2005 t by the Department it was found to be free from Sodium Meta Bi Sulphite . Consequently, alleging that the appellant had wrongly availed duty exemption against Sr. No. 153 of Notification No. 21/2002-Cus dated 1.3.2002 by misdeclaring the description of the goods, show-cause notice was issued to them on 20.10.2005 for recovery of the differential duty and proposing confiscation of the goods seized during the course of investigation and also proposal for imposition of penalty under various provisions of the Customs Act, 1962. On adjudication, the demand was confirmed and the goods were directed for confiscation and penalty were also imposed on the importer and other noticees as well under various provisions of the Customs Act, 1962. Hence, the present appeals. 3. At the outset, learned Advocate Mr. S.P. Mathew for the appellant has submitted that even though in the first chemical test report dated 30.5.2005 of Dy. Chief Chemist, Mumbai returned the remnant sample opining that the presence of Sodium Meta Bi Sulphite could not be tested, but in the second test report dated 10.6.2005, on testing of .....

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..... 4) ELT 289 (SC). Further, he has submitted that the confiscation of the goods relating to past clearances which were neither seized nor provisionally released, cannot is bad in law and cannot be sustained. In support, he has referred to the judgment of this Tribunal in the case of Sun TV Network Ltd. Vs. CC, Chennai - 2018 (360) ELT 1068 (T). 5. Per contra, learned AR for the Revenue has submitted that the appellant in the consignments of packing paper imported mis-declared the same with an intention to avail the benefit of Sr. No. 153 of the Notification No. 21/2002-Cus dated 1.3.2002. The test results of the chemical test on the sample drawn from the consignment for which Bill of Entry No. 567313 filed on 10.5.2005 revealed that it is free from sodium meta bi sulphite ; the principal condition to claim benefit of Sr. 153 of Notification No. 21/2002 dated 1.3.2002. After the consignment dated 10.5.2005 they have imported further six more consignments and Bill of Entry for clearance of four consignments claiming exemption under Notification No.21/2002-Cus, which on chemical test also found to be free from sodium meta bi sulphite. 6. It is his contention that besides the chemical te .....

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..... Entry No.567313 dt.10.05.2005 declaring the description of the said product as Fruit Grape Guard Packaging Paper in sheet form coated with Sodium Meta Bi Sulphite . Pending clearance from the port, the said consignment was detained and samples were drawn and sent for chemical test. In the first test report dt.30.05.2005 the Dy.Chief Chemist of Customs Laboratory, Mumbai reported that presence of Sodium Meta Bi Sulphite could not be chemically examined. The remnant samples were later sent again and also fresh samples were drawn and sent to CRCL, New Delhi. Samples on the subsequent imports were also subjected to chemical test. The test report dt.10.06.2005 and later reports of samples of subsequent imports revealed that the samples were free from Sodium Meta Bi Sulphite. On the basis of the said test report, investigations were carried out and statements of various persons were recorded. In his statement, Shri Dilip Patel, who claimed to be the authorised signatory of M/s Salasar Imports admitted to have been imported the goods mis-declaring the same as Fruit Grape Guard Packaging Paper coated with Sodium Meta Bi Sulphite . He retracted the said statement furnished before the Custo .....

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..... mist due to lack of facility and subsequent test report of Dy.Chief Chemist, Mumbai and CRCL, New Delhi indicated that the samples do not contain Sodium Meta Bi Sulphite, hence the said reports cannot be relied upon, without subjecting the experts/chemical examiners to cross examination. Advancing reasons for not containing Sodium Meta Bi Sulphite in the sample of the imported paper it is stated that the same may be due to delay in import and also delay in test of the samples. The Appellant has further argued that the paper imported initially, contained Sodium Meta Bi Sulphite but, either due to decay or evaporation during storage, traces of Sodium Meta Bi Sulphite could not be found in the sample. 13. Rebutting the said argument, the learned A.R. for the Revenue has submitted that Sodium Meta Bi Sulphite is not a volatile substance and could not be evaporated during storage after its import for the simple reason that the melting point of Sodium Meta Bi Sulphite 1700C is more than 700C of the boiling point of water. Besides, the Sodium Meta Bi Sulphite coated paper is imported for preventing the decay of grapes during storage for longer period. In the event, Sodium Meta Bi Sulphite .....

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..... of testing of samples has been narrated. There is no opinion about the contents of the samples. Therefore, the said reports also would not be of any help to the Appellant. 16. During the course of chemical test of the samples of consignment against Bill of Entry dt.10.05.2005 and samples of subsequent imported consignments against four Bills of Entry, the results of the samples revealed that it is not coated with Sodium Meta Bi Sulphite. Thus, the Adjudicating authority inferred that the description of the goods was mis-declared in order to avail exemption under Notification No.21/2002-Cus, dt.1.3.2002, hence, directed confiscation of the goods seized and released provisionally with an option to redeem the same on payment of fine. 17. However, the learned Commissioner extrapolated the test results of the samples to the consignments which were imported and cleared in the past. In absence of any adverse test report of the samples relating to past consignment, we do not find merit in the order of the Adjudicating authority, to apply the test results of the samples drawn to the past consignments in directing confiscation and denying the benefit of exemption Notification No.21/2002-Cus .....

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