Customs, Excise and Gold Tribunal - Mumbai
Shalimar Agencies vs Commissioner Of Customs on 14 February, 2000
Equivalent citations: 2000(120)ELT166(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The appellant imported a consignment at Kandla and filed for its clearances a bill of entry describing the goods as mild steel low carbon cold rolled carbon steel strips cut- tings/defectives. The bill of entry indicated the percentage of the various elements contained in the steel. The department was of the view that the value declared in the invoice and bill of entry was US $ 260 per metric tonne CIF was far too low, in view of the report of test furnished by the Indian Institute of Technology (IIT for short), Bombay, which, after testing the goods found them to be silicon steel electrical grade and also not to be defective. The notice issued to the importer proposed to enhance the value to US $ 1085 per metric tonne CIF based on the imports of silicon steel electrical grade by M/s. Electra India at Bombay. In reply to the notice, the importer disputed the correctness of the test carried out by the IIT, Bombay which concluded that the goods were electrical grade and wished to cross-examine Professor B.T. Rao, who has signed the certificate. The importer also relied upon the result of the test of the same material conducted by the National Test House at Bombay which indicated the goods to be defective and which more or less corresponds in terms of the specifications of the declaration made in the bill of entry. The correctness of comparing the value with that of the goods imported by Electra India was also questioned. The Collector did not accept these contentions and enhanced the value and also imposed a penalty under Clause (m) of Section 111. Hence this appeal.
2. It is clear that, for some reason, the material was tested after it was tested by the IIT, Bombay by the National Test House at Bombay. This certificate of the National Test House indicated the goods to be defective. It also indicates the average carbon content to be 0.16%. The departmental representative's contention that the material was sent to National Test House only to determine whether it was prime or defective is not supported by any material. While the Collector indicates that it was re-tested at the instance of the importer, the representative of the importer denies having asked for the retest. Nothing much however turns on this. The fact remains that the material was tested by the National Test House and the contents of that test report cannot be disregarded merely because it contains details that were not asked for.
3. It is difficult to conclude on considering this report that the steel is electrical grade. The report does not go into this aspect. However, the percentage of carbon mentioned therein is significantly higher than the percentage mentioned in sub-heading (1)(c) of Chapter 72 of the tariff at the relevant time of silicon electrical steel. This note indicates silicon electrical stage to be alloy steel containing by weight at least 0.6% but not more than 6% of silicon and not more than 0.8% of carbon. While this note is admittedly on for the purpose of tariff classification, it, in our view, gives some indication that the goods is electrical steel.
4. There is another aspect of the matter. Appellant, in its letter of 3-10-1992, had asked for cross-examination of Professor B.T. Rao who had issued the certificate of the IIT, Bombay. It was contended in the letter that electrical steel does not have the quoting of silicon and the fact of the steel imported by the appellant being silicon coated itself establishes that the electrical grade steel and in this regard it was stated that it was necessary to cross-examine Professor Dr. B.T. Rao. Dr. Rao declined to appear for cross-examination. Instead he wrote a letter, which is reproduced in the order of the Collector. In that letter he stated that the composition reported in the earlier letter of the ITT was that of the steel without silicon coating and that the percentage of silicon and carbon in the sample was the typical composition range of silicon steel for electrical application.
5. We are not able to accept the departmental representative's contention that this letter was sufficient to accept the contents of the earlier certificate without cross-examination of Dr. Rao. Dr. Rao's letter does not indicate any authority for his statement as to why silicon and carbon of the sample is the typical composition range of silicon steel for electrical application. As we have indicated this is prima facie doubtful from the reference to the tariff notes. In our view therefore this letter was insufficient statement for the presence of Dr. Rao for cross-examination. Appellant was entitled to elicit from him the basis for his opinion of this to rebut it. .
6. The departmental representative raises another point that cross-examination of witness cannot be claimed as a right in the departmental proceedings in which he cites the judgment of the learned single judge of the Calcutta High Court in Tapankumar Biswas v. Union of India 1996 (63) ECR 546. It is not really necessary for us to go into this aspect. The Collector has himself not denied the appellant the right to cross-examine Dr. Rao. It was in reply to a summons asking him to appear for cross-examination, that Dr. Rao declined to appear. The judgment of the single judge of the Calcutta High Court has no authority for saying that where a request for the cross-examination has been accepted but the person summoned for cross-examination does not appear, the document on which he has to be cross-examined is admissible as evidence without such cross-examination. Nor we are aware of any such judgment. The position on the contrary would be that where the person who is summoned for cross-examination does not respond to that summons either his presence must be enforced failing which the evidence tendered by him which is the subject-matter of the cross-examination cannot be relied upon by the adjudicating authority. In the circumstances of this case, therefore, the Collector was not entitled to act on the opinion of Dr. Rao.
7. The conclusion therefore would be that it has not been demonstrated that the goods were electrical silicon steel. The fact emphasised by the departmental representative that the specifications of the steel imported were contained not in a mill test report, that is to say being a report of the manufacturing mill but by a trader would not have any relevance. The correctness of these specifications claimed by the importer have not been questioned successfully by the department.
8. There is yet another aspect. In his Order No. 24/91, the Collector has noted that the imports made by Electra India were of French manufacture and proceedings had been initiated against Electra India itself for misdeclaration of the steel imported by it as defective, whereas it was prime. The goods imported by the appellant are stated to be United States origin. The steel imported by the appellant were neither identical nor similar goods and comparison would not be justified.
9. In the light of these discussions, we hold that the Collector's order needs to be set aside, do so and allow the appeal.