Custom, Excise & Service Tax Tribunal
C.C.E. New Delhi vs M/S. R.S. Overseas Pvt. Ltd on 8 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. C/52046/2015-CU(DB)
[Arising out of Order-in-Appeal No. CC(A)CUS/161/2015 dated 09.02.2015, , by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri V. Padmanabhan, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
C.C.E. New Delhi .Applicants
Vs.
M/s. R.S. Overseas Pvt. Ltd. .Respondent
Appearance:
Shri K. Poddar, DR for the Applicants None present for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Date of Hearing: 08.11.2016 FINAL ORDER NO. 55020/2016-CU(DB) Per Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (A) revenue has filed the present appeal.
2. We have heard the Ld. DR appearing for the Revenue. Nobody appeared for the respondent.
3. For better appreciation of the dispute and the order of the lower authorities we reproduce the relevant para from the impugned order of the Commissioner (A):
I have carefully gone through the contents of the appeal, and written submission of the appellant. It is evident from the record that the importer had declared the goods to be Calcite powder whereas markings on the bags was for calcium carbonate. The goods were presumed to be calcium carbonate and the same was concluded only on the basis of marking found on the PVC bags of the goods and not on the basis of any test report from any laboratory. Therefore, I find that the marking on the PVC bag was the only evidence on the basis of which the original authority decided the case against the party and ordered for encashment of the Bank Guarantee. Such decision on the basis of a marking on the bags of the goods and eye estimation is not based on solid footing especially in the face of the partys insistence that the good were Calcite Powder only. The easiest way out would have been to send the sample for testing.
Secondly, the bank guarantee should not have been encashed when an appeal was pending against the stand taken by the department on the issue.
This is also highly objectionable that order for confiscation was given without issue of a show cause notice.
I therefore, order that the case be reconsidered by the field after sending the samples for chemical analysis. I also order that till the issue is resolved, the bank guarantee so encashed, should be restored with the bank.
4. As is seen from the above reproduced para the Commissioner (A) has remanded the matter to the original adjudicating authority for sending the samples for chemical analysis and to re-decide the issue based upon the result of the same.
5. Revenues contention is that once physical examination has been done there was no need for chemical analysis.
6. We find no merits in the above contention of the Revenue. Admittedly, chemical testing of the goods would reveal the true nature of the goods imported by the assessee and would put all the facts beyond doubt. Physical and visual examination has been held to be not proper and appropriate in many decisions.
7. In view of the above we find no infirmity with the impugned order of Commissioner (A). Accordingly Revenues appeal is rejected.
[Dictated and Pronounced in the open Court]
(V. Padmanabhan) (Archana Wadhwa)
Member (Technical) Member (Judicial)
Bhanu
2
C/52046/2015-CU(DB)