Custom, Excise & Service Tax Tribunal
M/S. Ramdhan Mohan Lal vs Commissioner Of Central Excise on 3 October, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Customs Appeal Nos. 740-741 of 2005
[Arising out of Order-in-Appeal No. 11-12(MPM)/Cus/JPR-I/2005 dated 3.5.2005 passed by Commissioner of Customs & Central Excise, Jaipur]
For approval and signature:
Hon'ble Mr. M. Veeraiyan, Member (Technical)
Hon'ble Mr. P.K.Das, 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?
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M/s. Ramdhan Mohan Lal Appellants Vs. Commissioner of Central Excise Respondent Jaipur Appearance: Mr. Vineet, Co. Representative for the Appellant Mr. A.K. Madan, DR for the Respondent CORAM: Hon'ble Mr. M. Veeraiyan, Member (Technical) Hon'ble Mr. P.K.Das, Member (Judicial) Date of decision : 3.10.2008 ORDER NO . ________________________ Per M. Veeraiyan (for the Bench):
These appeals are against the common order of Commissioner No. 11-12(MPM)/Cus/JPR-I/2005 dated 3.5.2005. Written submission has been filed on behalf of the appellant.
2. Heard the learned DR.
3. The appellant imported goods and filed Bills of entries claiming the goods them as marble falling under Chapter 25.15 and produced the DEEC licence to clear the same. The samples of consignments were sent for testing to the CRCL and also to Director Geological Survey of India. The gist of report from two agencies are reproduced below:
CRCL: Each of the two samples is in the form of off-white and grey colour respectively of irregular shape and size of hard calcareous stone composed essentially of calcium carbonate. Each has the characteristic of marble in respect of physical properties as laid down in IS: 1130 1169 (reaffirmed in 1993). GSI: It is a variety of Lime Stone (ef IBM specification). It does not show any evidence of metamorphic recrystallization and thus is not a marble.
4. From the above, it is seen that the report of CRCL is in favour of the appellant and the report of Director, Geological Survey of India is in favour of the claim by the Department. The original authority, relying on the test report of Geological Survey of India confirmed the demand of duty along with interest; and also confiscated the goods for not being in conformity with the DEEC licence and allowed redemption on payment of fine and imposed penalty. The Commissioner (Appeals) has upheld the decision of the original authority.
5. On behalf of the Department, it was submitted that Geological Survey of India is a specialised agency in matters relating to geology and therefore, their test report should be given preference over the report of CRCL. He also relied on the circular of the Board No.40/2002-Cus. dated 11.7.02 which has suggested that the samples have to be sent to Geological Survey of India for testing and not to CRCL; that in the event of conflicting reports, the report of Geological Survey of India should prevail. Learned DR also relied on the decision of the Honble Supreme Court in the case of Akbar Badruddin Jiwani vs. Collector of Customs [ 1990 (47) ELT 161 (SC)].
6. We have carefully considered the submissions by learned DR and also the written submissions filed on behalf of the appellant. The chemical composition of the lime stone and marble are the same and are not different. The marble is formed by the process of metamorphism of lime stone. The judgement relied upon by the learned DR. In the case of Akbar Badruddin Jiwani also holds that the marble is formed by metamorphism of the lime stone and the product should be subjected to microscopic examination to confirm whether the same is marble or not. The report of CRCL confirms that the imported goods satisfy the physical characteristics of marble. The appellants claim for retesting has not been allowed. It is not a case where the department sent the sample only to Geological Survey of India. Having sent the sample to CRCL and having received the report which is in conflict with the report of Geological Survey of India, the refusal to permit retesting and refusal of cross-examination are not justified. Further, the import has taken place in September, 1999. The clarification of the Board has been issued in 2002.
7. In the given facts and circumstances of the case, we hold that the appellant has made out a case for interference. Accordingly, we set aside the orders of the Commissioner (Appeals) and allow the appeals with consequential relief.
(Dictated in the open Court)
( M. Veeraiyan )
Member(Technical)
( P.K.Das )
Member(Judicial)
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