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2019 (5) TMI 1032

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..... n 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 past consignment, there is no 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 N/N. 21/2002-Cus, dt.1.3.2002. Consequently, the test report, be restricted to the consignment of packing papers whose samples were drawn and tested and found to be free from Sodium Meta Bi Sulphite. However, since there is mis-declaration of the description of the imported goods, in order to avail the benefit of exemption Notification No.21/2002-Cus, dt.1.3.2002, the goods which were seized and released provisionally are liable to confiscation and the importer and the persons associated are liable for penalty. The Appellants are not eligible to the benefit of N/N. 21/2002-Cus .....

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..... us 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 the samples, it was opined that the same was free from sodium meta bisulphite . Also, the sample tested by Central Revenue Chemical Laboratory (CRCL), New Delhi, on the fresh samples drawn in its rest report it was opined that the sample is free from sodium bi sulphite . The request for cross-examination of the chemical examines/experts by the appellant has been denied by the adjudicating authority. It is his contention that the denial of cross-examination of the experts resulted in grave injustice to them, hence, the said reports should not be relied. In support, he referred to the following judgments: - (a) Tulsyan NEC Ltd. Vs. CC, Chennai - 2003 (157) ELT 627 (Mad.) (b) AMKAP Marketing Pvt. Ltd. Vs. CCE, Lucknow - 2010 (256) ELT 260 (c) CCE, Nagpur Vs. Mattel Toys (I) P. Ltd. .....

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..... ncipal 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 test carried out in the Customs Laboratory at Mumbai and also at CRCL, New Delhi, the statements of various persons recorded during the course of investigation, particularly that of Shri Dilip Patel claimed to be authorized representative of the importer revealed that they have mis-declared the imported goods as Fruit grape guard packaging paper coated with sodium meta bi sulphite to avail the benefit of exemption. The Ld. Commissioner has rightly rejected the request for cross-examination of the said examiner as such reports cannot be brushed aside on the basis of private reports in view of the Judgment of the Hon ble Supreme Court in the case of M/s Reliance Cellulose Products Vs Collr.of C.E. Hyderabad 1997 (93) ELT 646 (SC). 7. The learned AR for the Revenue has further submitt .....

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..... asis 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 Customs authorities but later withdrew the said retraction and reiterated the statement furnished earlier. Analysing the test reports and the statements recorded during the course of investigation, the adjudicating authority came to the conclusion that the consignments imported by the Appellant on which necessary chemical test were carried out to ascertain the presence of Sodium Meta Bi Sulphite, since resulted in negative, therefore, the benefit of exemption Notification No.21/2002-Cus, dt.1.3.2002 for the consignments seized and released on provisional basis on execution of bond and bank guarantee was not admissible. Also, applying the said test report for the imports made in the past the said benefit of exemption Notification No.21/2002-Cus, dt.1.3.2002 was also denied and the duty .....

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..... at 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 evaporates before being put to use then the very purpose of coating with Sodium Meta Bi Sulphite would be defeated. 14. We find merit in the contention of the learned A.R. for the Revenue. On going through the impugned order, we find 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. The learned Commissioner has rightly rejected the request for cross examination of the chemical examiner expert, observin .....

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..... ed 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, dt.1.3.2002. Consequently, the test report, in our opinion, be restricted to the consignment of packing papers whose samples were drawn and tested and found to be free from Sodium Meta Bi Sulphite. However, since there is mis-declaration of the description of the imported goods, in order to avail the benefit of exemption Notification No.21/2002-Cus, dt.1.3.2002, the goods which were seized and released provisionally are liable to confiscation and the importer and the persons associated are liable for penalty. 18. We summarize the findings as follows:- (i) The Appellants are not eligible to the benefit of NotificationNo.21/2002-Cus, dt.1.3.2002 relating to the imported consignments whose samples were drawn and test results found to be free from Sodium Meta Bi Sulphite. The test .....

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