Custom, Excise & Service Tax Tribunal
M/S. Rathi Enterprises vs C.C.E. & C.E. & S.T. - Noida on 19 January, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Application No. C/Stay/50060/2015-(SM)
Appeal No. C/55868/2014-CU(SM)
[Arising out of Order-in-Appeal No.02/CUS/Commr/Noida/2014-15 dated 07.11.2014 by the Commissioner of Central Excise (Appeals), Noida].
For approval and signature:
Honble Mr Ashok Jindal, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Rathi Enterprises .Appellants
Vs.
C.C.E. & C.E. & S.T. - Noida .Respondent
Appearance:
Shri Arvind Nayar, DR for the Appellants Shri D. Singh, Advocate for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 19.01.2015 FINAL ORDER NO.50137/2015-CU(SM) Per Ashok Jindal:
The appellant is in appeal along with an application for stay against the impugned order which is as under: I reject the request of the importers for retesting of samples of the imported goods in any laboratories other than CRCL.
2. Today the stay application is listed before me for consideration. After hearing the parties, I find that the disposal of stay application shall be deemed to disposal of the appeal, therefore, stay application and appeal are taken up together for disposal.
3. The facts of the case are that the appellant imported Calcite Powder or Chalk or Natural Calcium Carbonate. The samples were drawn and sent to CRCL for testing. The report of the CRCL was received and it was termed as these had the characteristic of calcium carbonate processed other than natural calcium carbonate. Therefore, the test report given by CRCL was objected by the appellant and sought to be retested the sample from some other laboratories other than CRCL. The said request of the appellant was denied by the impugned order. Therefore, aggrieved by the order appellant is before me.
4. The Ld. Counsel for the appellant submits that as CRCL has given the test report concluding that it is a processed calcium carbonate and it is not natural, but as per information sought from the CRCL laboratory dated 13.09.2013, it is the submission of the officer of the CRCL that for want of required facilities, this laboratory is not able to analyze sample of calcite powder. Thereafter, another information was sought on 21.07.2014 and it was informed that no new equipment / machine have been installed / purchased specifically for testing sample of calcite powder / natural calcium carbonate after 13.09.2013. He further submits that in the case of some other importer, the adjudicating authority has allowed for retesting of the sample from NABL laboratories. He further submits that the report of the supplier of the goods also shows that it is a natural calcium chalk, the said report cannot be denied. Therefore, he prayed that impugned order be set aside and Adjudicating Authority be directed to get the sample retested from any laboratory other than CRCL.
5. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that in this case CRCL has given conclusive report that it is the processed calcium carbonate and also submits that the appellant has not asked for cross examination of the officer of CRCL, which he had a right to ask for the cross examination. Therefore, at this stage, the said report cannot be denied. He further submits that the report has been obtained in 2013 and the appellant is asking for retest from the laboratory as per their choice which cannot be permitted at this stage. He could have asked for the retest from the higher official but he cannot ask for retest to be conducted by a particular laboratory.
6. Heard the parties and considered the submissions.
7. In this case, I find that representative samples were drawn and same were sent to CRCL laboratories. The test report of CRCL has been objected by the appellant. It was also revealed from the records that CRCL has no equipment to test the represented samples of the appellant. Therefore, the test report given by CRCL is in doubt. The appellant is having a right to ask retest of the samples from any other laboratory other than CRCL when the CRCL is not having equipments to examine required product. In these circumstances, the test report of CRCL is not acceptable.
8. Therefore, the impugned order is set aside. Accordingly, the adjudicating authority is directed to get the samples retested from any laboratory other than CRCL and thereafter to pass an appropriate order in accordance with law. The adjudicating authority is also directed till finalization of the adjudication in this matter the bank guarantee furnished by the appellant shall not be enchased.
9. Stay application and appeal are disposed off in the above mentioned counts.
10. Order be given dasti.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
C/55868/2014-CU(SM)