TMI Blog2021 (12) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... may not conclude the proceedings except in circumstances that confirm the declaration of the importer. This should have found a place in the impugned order. The question that follows is whether the first appellate authority, and arising from inability to proceed with determination on merits, is within its competence to direct fresh evidence to be incorporated in the proceedings - proviso to section 128A(3) of Customs Act, 1962 empowers Commissioner of Customs (Appeals) to issue show cause notice subject to conditions prescribed therein and, though rarely resorted to, impliedly authorizes directions, such as re-test of the goods once again for issue of addendum to show cause notice, without compromising principles of natural justice. In the absence of a finding on the nature of the goods, the dispute remains undetermined. The rival claims of feasibility of testing and the futility of the exercise do not suffice for determination and testing appears to be the only option. Learned Consultant has also not placed any alternative for determination of the nature of the goods - However, mere re-testing may not culminate in conclusion of proceedings even if the test report is conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial no. 2. Besides confiscating the impugned goods valued at ₹ 48,26,024/- under section 111(m) of Customs Act, 1962, with option to redeem on payment of fine of ₹ 5,00,000/-, and imposing penalty of ₹ 3,83,784/- on the appellant herein, penalty of ₹ 1,00,000/- was imposed on the proprietor of the importing entity under section 112 of Customs Act, 1962. The proprietor, in personal capacity and as importer, approached the first appellate authority who passed the order now impugned. 3. The appellant, a proprietorship concern, had filed bill of entry no. 3663814/18.10.2017 for import of pre-sensitized positive offset aluminium plates (for offset printing machine) from Malaysia and claimed exemption from basic custom duty, in accordance with the ASEAN-India Free Trade Area Preferential Tariff as enabled by notification no. 46/2011-Cus dated 1st June 2011 (serial no. 1182), for discharge of duty liability of ₹ 8,68,684/-. Owing to doubts about correctness of the declaration, samples were forwarded to M/s Alpha Plus on 30th October 2017 for testing and, as per their report dated 31st December 2017, these were established to be computer-to-conventional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plates had limited life, he argued that, as the test process had been discredited in the impugned order, the declaration should be accepted and goods released to appellant. The comparison of the two reports undertaken by the original authority thus 11. Based on the above discussion it is clear that the TR issued by M/s Alpha Plus which is a private party and the manner and circumstances in which the said TR was prepared and issued is found to be doubtful with its authenticity hence the same is not taken on record for taking any decision about the correctness of the description of good. With regard to the TR issued by the testing lab i.e. IIGT Mumbai which is having affiliation with the TISS, Mumbai, it is found that the authenticity of the same is found to be correct. was, according to him, contrived for confirming the inclination to garner higher revenue by denial of preferential treatment. The discarding of certificate of origin , and thereby denying eligibility for exemption and laying the ground for re-determination of origin of the goods, without following the process of verification prescribed in circular no. 31/2016-Cus dated 12th September 2016 despite being brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id so. As the good are imported from the China therefore the same are not eligible for the benefit of the claimed exemption Notfn No; 46/2011 Sr. No: 1182(1) Dt 1.0.2018 and consequently based on the finding of the TR and the cross examination the goods which arc found mis-declared correctly attracts ADD under Notfn No: 51/2012 Cus (ADD) Dt 3.12.2012 8.No: 2. was assailed by Learned Consultant. 7. It is also pointed out by him that the first appellate authority had found itself unable to determine the merits of the case owing to 7.5 Thus there is no reason to accept the conclusion arrived at by the OA in the denovo order-in-original that the goods are CtCIP Plates as the same is based solely on the test report issued by IIGT, Mumbai. The OA should have appreciated that since, the appellant had been maintaining that the goods were P S Plates , the testing was a material fact having bearing on the classification, leviability of Anitdumping Duty, confiscation and related matters. However, the department and relied on the test report given by IIGT. The nature of goods is a fact , ascertainment of which cannot be allowed to be sacrificed on some legal technicalities parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Company [2018 (361) ELT 577 (SC)] in support of the contention that an ambiguity in the exemption notification does not, by default, favour the importer. He contends that the direction issued by the first appellate authority is implementable and that it is physically, and logically, possible to conduct the re-test. He also contends that, on perusal of the finding of the Director General of Trade Remedies dated 15th May 2020, coverage of imported goods within the intent to levy anti-dumping duty is amply clear. According to him, Mr Nalage had, in statements dated 3 rd November 2017 and 15th January 2018, admitted to the goods having been manufactured in China and that further evidence is not required to substantiate that which has already been admitted. 10. It is seen from the records of proceedings that the sole purpose of the remand is for re-test of the goods owing to lack of sufficient clarity to determine conformity of the goods with the description in the bill of entry. Having found himself unable to proceed further, other findings of the original authority were not taken up for consideration by the first appellate authority. Despite this, Learned Consultant argued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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