TMI Blog2023 (12) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only on arguments since arguments, howsoever forceful, cannot take the place of proof or substitute evidence. The Revenue in order to reach the conclusion as to the classification of the impugned goods, has placed reliance on the expert opinion and the same is not based on assumptions and presumptions and nor is it the personal view of the adjudicating authority. There are no piece of evidence to take a contrary view to the finding of the first appellate authority as to the classification of the imported goods as Superior Kerosene Oil by rejecting the uncorroborated classification as LAWS by the appellant - the Commissioner (Appeals) should have closed the case instead of remanding the matter back to the file of the original authority, which is against the amended provisions of Section 128A of the Customs Act, 1962, which has withdrawn the power of the Commissioner (Appeals) to remand the case for fresh adjudication except for those issues mentioned at Section 128A(3)(b), which does not cover the impugned issue. The order of the original authority is restored - Appeal dismissed. - MR. P. DINESHA, MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive and non-conformative. 4.4 Based on the above, it appears that the Revenue drew samples once again, which were forwarded to the Central Revenue Control Laboratory (CRCL), New Delhi. The samples were drawn vide Mahazar dated 02.01.2019 and it is not disputed that the appellant was duly represented while drawing the samples and also while drawing up of the Mahazar to that effect. The CRCL, New Delhi appears to have given its opinion / report dated 11.02.2019 whereby, in a nutshell, the said authority has opined as under [made available by the appellant in its paper book before us] : - 5. Based on the above, a Show Cause Notice dated 29.05.2019 came to be issued proposing inter alia to re-classify the product under import as Superior Kerosene Oil under CTH 2710 1910 as against LAWS which was classified by the importer under CTH 2710 1990. 6. It appears from the documents placed on record that the appellant filed its reply dated 04.07.2019 to the above Show Cause Notice disputing the stand of the Revenue and essentially, the proposed re-classification of the goods in question. 7. The original authority having considered the available evidences in the form of exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority ought not to have rejected the appellant s challenge against the Test Report of CRCL, New Delhi. Without prejudice to the above, the first appellate authority has failed to appreciate the submission of the appellant in the appeal memorandum that the onus cast upon the Department to classify the product in question under a particular heading has not been discharged in the instant case. Without prejudice to the above, it is submitted that the only document being relied upon in the instant matter is the Test Report dated 11.02.2019 issued by the CRCL. Without prejudice to the above, the appellant in its appeal had categorically submitted that during the period of dispute viz. 2018, for a product to be classified as kerosene under the Customs Tariff Act, 1975, the same was required to meet the specification envisaged in Supplementary Note (c) to Chapter 27. A perusal of the said Supplementary Note clearly indicated that a product can be classified as kerosene only if it conforms to IS 1459-1974 (reaffirmed in 1996) and not to any other IS specification. Even though the Customs, in the instant case, has tested the product in question under IS 1459-2018, still to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity has remained silent in the impugned order on the benefit of payment of reduced penalty sought by the appellant in the appeal memorandum under Section 112(a) of the Customs Act, 1962. It is pointed out that as the order passed by the adjudicating authority has resulted into change of classification, leading to payment of higher rate of Customs duty from 5% as claimed to 10%, as ordered by the adjudicating authority, the duty has been determined under Section 28(8) of the Customs Act, 1962. Accordingly, the benefit of proviso to Section 112(a) is available to the appellant. Without prejudice to the above, it is submitted that since no duty, fine or penalty was payable in the matter, as submitted by it, the appellant is entitled to refund of the same. Without prejudice to the above, the appellant has submitted that since the product in question is not kerosene, the reference made to STE or the fact that the appellant did not take licence for import of the said product, in paragraph 16 of the impugned order, is irrelevant, unwarranted and inconsequential. 10. The tenor of the grounds-of-appeal, written submission and the arguments advanced before us clearly indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentatives. Based on the above, the Hon ble Apex Court has concluded that the samples were not drawn in accordance with law, which fact was ignored by the Tribunal. 12.2 In the case of M/s. Hindustan Ferodo Ltd. v. Collector of Central Excise, Bombay [1997 (89) E.L.T. 16 (S.C.)], which is also relied upon by the Ld. Advocate, the Hon ble Apex Court has in very clear terms reiterated the function of the Tribunal in the following words: - 3. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed. 4. It is not the function of the Tribunal to enter into the arena and make suppositions that are tantamount to the evidence that a party before it has failed to lead. Other than supposition, there is no material on record that suggests that a small scale or medium scale manufacturer of brake linings and clutch facings would be interested in buying the said rings or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to the classification of the impugned goods, has placed reliance on the expert opinion and the same is not based on assumptions and presumptions and nor is it the personal view of the adjudicating authority. 15. In the light of the above discussion, we do not find any piece of evidence to take a contrary view to the finding of the first appellate authority as to the classification of the imported goods as Superior Kerosene Oil by rejecting the uncorroborated classification as LAWS by the appellant. Hence, as objected to by the appellant, we are also of the view that the Commissioner (Appeals) should have closed the case instead of remanding the matter back to the file of the original authority, which is against the amended provisions of Section 128A of the Customs Act, 1962, which has withdrawn the power of the Commissioner (Appeals) to remand the case for fresh adjudication except for those issues mentioned at Section 128A(3)(b), which does not cover the impugned issue. 16. In that view of the matter, we dismiss the appeal filed by the appellant, however, setting aside that part of the impugned order whereby the first appellate authority has remanded the matter back ..... X X X X Extracts X X X X X X X X Extracts X X X X
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