TMI Blog2023 (8) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants despite advice of suppliers for second opinion and the sample re-test did not opt for same foregoing their right of SCN or personal hearing or even re-test in the matter and just pleading for minimum fine and penalty. After having got the goods cleared by waiving Show Cause Notice or personal hearing and requesting for imposition of minimum fine, which were clearly brought in violation of EXIM policy relating to light oil at the relevant time as the same was a canalised item and was allowed to be imported only through State Trading Enterprises, as per the policy condition 5 of chapter 27. An after thought of the appellants cannot be allowed to help their cause. Reliance in this regard is placed on PINE CHEMICAL SUPPLIERS VERSUS COLLECTOR OF CUSTOMS [ 1992 (9) TMI 111 - SUPREME COURT ] to emphasize that when violation in relation to goods are accepted, penalties get attracted. Party had all the opportunity to seek re-test or even cross examination of Chemical analyst, if it found it to be erroneous, but it chose not to do the same. Having acquiesced with so termed erroneous report, it cannot now be allowed to resist it. Error, qui non resistitur. (An error n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - under Section 125 of the Customs Act, 1962; imposed penalty of Rs.2,00,000/- on the appellant under Section 112(a)(i) of the Customs Act, 1962; also ordered that the goods to be released on payment of appropriate duty, redemption fine and penalty. The order of the adjudicating authority was upheld by the Commissioner (Appeals) as well in totality. Being aggrieved, appellant has filed the appeal contending, inter alia, that: 2 The department failed to appreciate that on examination it was found that the goods were declared as Industrial Composite Mixture , however, on the basis of test report, the goods was found to be light oil. There is no change in rate of duty in case the goods are light oil. Therefore, there is no case for confiscation under Section 111 (d) and 111(m) of the Customs Act, 1962 as the goods are freely importable under CTH 27101290. 2.1 The department erred in holding that the goods merited classification under CTH 27101290 as light oil, which is without any basis and/or evidence as the density at 15 degree Celsius * 0.783g/ml. flash point-41 degree Celsius, aniline point-44 degree Celsius, initial boiling point M/s.M.M. Trading Company 2.2 (IBP) 158 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Final boiling point 212 C iii. Flash Point 41 C iv. Density at 15 C 0.7830 gm/ml and is therefore light oil/SBPS 3.2 The appellant further say and submit that the order in original clearly records as follows: [para 05.] From the test report it is seen that the goods in question do not confirm the parameters of Motor Spirit . Further, the goods have not been tested for having anti-knock preparations, hence the respondent seeks to classify the goods under CTH 2710 1290 i.e 'Other'. However, there is no duty difference even if the goods had confirmed the test of anti-knock preparations. 3.3 The appellant say and submit that the said goods are used in paint and similar industries. To qualify as light oil the product needs to be tested in ad mixture with anything other than 'Mineral oil'. The respondent has not produced any evidence to classify the product as 'light oil falling under CTH 2710 1290. However, due to paucity of time and the detention charges the appellant waived the SCN and personal hearing and did not get the goods re-tested. 3.4 Further, the appellant had submitted the certificate of analysis at the time of filling of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 states that the imported goods is composed of mixture of mineral Hydrocarbon having initial boiling point 158 C. Final Boiling Point 212 C, Flash Point 41 C, Density at 15 C - 0.7830 gm/ml; it is light oil. Thus as per the said test report, the imported cargo was other than the declaration and they are other than Industrial Composite Mixture and it is Light Oil. After it is confirmed from the test report that the imported goods are Light Oil, the adjudicating authority has correctly observed at para 05 and 06 of the impugned order that the imported goods are appropriately classifiable under tariff heading 27101290 i.e. 'Other' of subheading 'Light Oils and Preparations'. The appellant has contended that even the goods imported are freely importable under CTH 27101290. However, being the goods falling under tariff heading 27101290, the same are allowed to be imported through State Trading Enterprises(STE) as per Policy condition-5 of Chapter-27. The policy condition-5 of chapter 27 is as under: M/s. M.M. Trading Company 5 Import allowed through 10C subject to Para 2.20 of Foreign Trade Policy, except for the companies who have been granted rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... range 145-230 Desity@ 15 C 780-790 Copper strip, 3hrs 100 C 1a Flash point, tag(min) 45 Color, saybolt 25 Doctor test Neg Sulphut total(max) 0.1 Gum existent (max) 5 Aromatic content 20(max) The report at R/P 18 of the appeal memo is undated and bears no name of testing agency and its purpose nor does it correlate with impugned consignment. 5.2 As against this, Department relied upon the test report Bearing No. 1671 dated 12.07.2018, from CRCL Kandla, which indicated the imported goods is composed of mixture of Mineral Hydrocarbon which is reproduced below: Initial Boiling Point = 158 C Final Boiling Point = 212 C Flash Point =41 C Destity at 15 C = 0.7830 gm/ml 5.3 On the basis of above and a clear finding that the product was light oil has been arrived at, by the department. The learned Commissioner (Appeals), after detailed di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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