Customs, Excise and Gold Tribunal - Mumbai
York Exports vs The Commissioner Of Customs (Exports) on 11 May, 2004
Equivalent citations: 2004(169)ELT175(TRI-MUMBAI)
ORDER K.D. Mankar, Member (T)
1. The appeal of the appellants is directed against the impugned order Passed by the Commissioner of Customs (Export), whereby the two shipments effected by the exporter for fulfillment of export obligation against an advance licence were rejected. Consequently there was a short shipment with reference to the required export obligation. The rejection of the shipment was on the ground that the test report of the samples drawn from the expert consignments revealed presence of acrylic fibre, besides Mohair and Polyester, which the Commissioner held to be not permissible. This was also treated as mis-declaration of export goods, rendering them liable to confiscation under Section 113(d) of the Customs Act 1962, and thereby the importers were held liable for penalty under Section 114(1) of the Act. Though the goods were not physically available for confiscation (having been physically exported long back), the Commissioner ordered that, these goods may be deemed to have been redeemed on a redemption fine of Rs. 7.5 lakhs. Penalty of Rs. 75,000/- was imposed on the appellants under Section 114 (1) of the Act. Aggrieved by the said order the appellants have filed the instant appeal.
2. Heard both sides.
3. We note that only two test reports covering two shipments, out of the sixteen export consignments from which samples were drawn showed adverse reports viz., presence of acrylic fibres. In all eighteen consignments were exported and no samples were drawn from two export shipments. The Commissioner accepted description of the export consignments from which no samples were drawn. Thus, out of eighteen shipments only two shipments are under dispute.
4. As soon as these adverse findings of the test report were brought to the notice of the appellants, they congested the correctness of the test reports and requested the concerned authorities to subject the remnants of samples or the duplicate samples for a re-test. This request, we note, has not been acceded to. Instead, the contents of the test report are justified in the impugned order by saying that the laboratory could not have recorded the presence of "acrylic fibre" if the same was not present in the export product. In this connection, we would like to emphasise that the appellants have a right to contest the correctness of the test report. Denial of this right is denial of natural justice. In the absence of a re-test report, the findings of the said test report have to be discarded as also the findings based on the said report.
5. Accordingly on this limited point we note that the order Passed by the Commissioner can not be sustained. Consequently, we set aside the impugned order, and allow the appeal, with consequential relief, if any, in accordance with the law.
(Pronounced in Court)