TMI Blog2020 (10) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... to the case. Also, as observed by the ld. Commissioner and submitted by the Ld. AR for the Revenue that even though the appellants have raised an alternative argument that in the common parlance the goods imported by them is known as marble, but they failed to produce any evidence to substantiate the said claim. Thus, in absence of sufficient proof the said alternate plea also cannot be acceptable. Therefore, the goods imported by the appellants are not marble but calcareous stone other than marble which requires specific import licence at the relevant time. Whether there is violation of the relevant provisions of law on import goods? - contention of the appellant is that all these goods imported into India after 8.5.1999, hence insisting specific import licence only for the reason that the shipment were done prior to the said cut off date i.e. 8.5.1999 is not tenable in law - HELD THAT:- There are no merit in the said contention of the appellants in as much as the issue is settled in a series of cases including in the cases by the Hon ble Madras High Court in M/S. ROYAL IMPEX VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS, GROUP -1 [ 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e modified to the extent of reduction of fine and penalty to 20% and 5% respectively, and all the appeals are remanded to the adjudicating authority to calculate the redemption fine and penalty accordingly - Appeal allowed by way of remand. - Customs Appeal No. 677 of 2006, Customs Appeal No. 704-705 of 2006, Customs Appeal No. 801-802 of 2006 - A/85788-85792/2020 - Dated:- 25-9-2020 - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Anil Balani, Advocate for the Appellant Shri Bhushan Kamble, AC, Auth. Representative for the Respondent ORDER These appeals are filed against respective Orders-in-Original passed by the Commissioner of Customs (Import), Mumbai since involved common issue, hence are taken up together for disposal. 2. The facts more or less are common in all these appeals. However, to appreciate the issue under dispute it would suffice in narrating the facts of M/s Harital Marbles Pvt. Ltd. The said Appellant have imported 148.47 MTs of rough marble blocks which were provisionally assed by Mumbai Customs considering the value as US$ 95 PMT. With effect from 1.4.1999 import of marble block was allowed under SIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Penalty Imposed 677/2006 Harital Marble Pvt. Ltd. ₹ 7,50,000/- ₹ 1,50,000/- 704/2006 Bono Marbles ₹ 37,00,000/- ₹ 5,00,000/- 705/2006 Bono Marbles ₹ 2,50,000/- ₹ 50,000/- 801/2006 Classic Marbles ₹ 9,00,000/- ₹ 1,80,000/- 802/2006 Classic Marbles Nil ₹ 4,20,000/- 5. Learned Advocate Shri V.M. Doiphode for the appellant M/s Harital Marble Pvt. Ltd. has submitted that the learned Commissioner has erred in holding that the subject goods imported by the appellant was not marble but other calcareous stone that is other than marble . Even though in the cross-examination, GSI Scientist has accepted that the imported goods are homogenous fine grade and hard calcareous stone, but in providing their opinion, they had ignored the definition given under HSN and the sample w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marble as per trade parlance and on the basis of CRCL report. Alternatively, he has submitted that even if the goods are held to be other calcareous stone , import was permitted after 8.5.1999. All the Bills of Entry in these cases are filed after 8.5.1999. Therefore, reliance on the Bills of Lading itself, by the learned Commissioner, in the impugned order, is bad in law. It is his contention that in principle the validity of an import is to be tested on the date of import only and not on the date of shipment. The date of shipment is relevant only if import is allowed on that date and restriction was imposed subsequently. Further, he has submitted referring to the judgment of the Tribunal in the case of Royal Impex and others Order No. CI/ 1596-1620/WZB/2002 dated 13.5.2002 that once the goods are assessed at a particular CIF value, the same value should be applied for determining requirements under EXIM Policy; there was no reason not to accept SIL so as to obviate confiscation under Section 111(d) of the Customs Act, 1962 and for this reason the Tribunal remanded the case. 7. Per contra, the learned AR for the Revenue has submitted that prior to 1999 the import of marble an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67) ELT 972 (Mad), Royal Impex Vs. Commissioner of Customs 2019 (366) ELT 820 (Mad), Siddhi Vinayak Vs. Union of India 2019 (367) ELT 928 (Bom). Therefore, the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 as they did not possess any specific license on the date of shipment. Also, the learned Commissioner has rightly imposed penalty under Section 112(a) of the Customs Act, 1962. In support, he has referred to various judgments in this regard. 9. Heard both sides and perused the records. 10. The issues involved in the present appeal for consideration is whether: (i) the goods imported by the Appellant are other calcareous stone as alleged by the Revenue or marble as claimed by the appellants; (ii) the goods are liable to confiscation and penalty is imposable on the Appellants. 11. The undisputed facts are that the appellants have filed Bills of Entry between May and June, 1999 for clearance of imported goods declaring the same as Rough Marble Slabs/Blocks with value less than 350 US$. The goods were provisionally assessed and thereafter samples were drawn and sent for testing to GSI, Nagpur, where after testing, it is opined as: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir opinion with reference to HSN but later on asking their opinion on the basis of technical and scientific specifications. It is also ironical that in the Akbar Badruddin Jiwani case the trade itself had argued that it is the scientific and technical meaning of marble which should be taken into consideration, but now they are proposing the entirely reverse proposition that marble should be classified on the basis of commercial trade parlance and not by technical and scientific meaning. There is no way by which the Akbar Badruddin Jiwani case can be distinguished from the present case. In the said Apex Court decision the HSN description of marble was also referred to and there has been significant change either in the HSN or the Customs Tariff so far as heading 2515 is concerned. 13. We find merit in the observation of the Ld. Commissioner. No plausible argument was advanced on behalf of the appellants in support of their claim that the judgement of Hon ble Supreme Court in the above case is distinguishable and not applicable to the case. Also, as observed by the ld. Commissioner and submitted by the Ld. AR for the Revenue that even though the appellants have raised an alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs, Jaipur 2009 (237) ELT 376 (Tri-Del) (ii) Radha Mohan Lal Vs. CCE, Jaipur 2009 (238) ELT 677 (Tri.Del.), Stone Man Marble Indus Vs. CC, Jaipur 2009 (240) ELT 276 (Tri.Del.), CC, Jaipur Vs. Flora Marbles 2012 (283) ELT 247 (Tri.-Del.) where the report of GSI was not accepted Tribunal. We have carefully considered the said judgements. In all these cases either the report of the GSI was found to be vague or conflicting opinions between GSI and CRCL, New Delhi had been noticed. In contrast, in the present case, the officer of GSI has been cross examined by the appellants in connection with the report furnished indicating that the goods in question is not marble. In the cross examination he affirmed the report. In these circumstances, the observation of the Tribunal in the aforesaid cases cannot be made applicable to the facts of the present case. 18. The Ld. Advocates for appellants have vehemently argued that the redemption fine and penalty imposed by the adjudicating authority is disproportionate and excessive. In this regard, we need not dwell much on the said issue as this Tribunal in similar circumstances, in the case of Gurukripa Marbles Vs. CC 2006 (201) ELT 79 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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