Custom, Excise & Service Tax Tribunal
Cc, Jaipur vs M/S. Flora Marbles on 11 May, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R.K.Puram, New Delhi-110066. Principal Bench, New Delhi. C/324/06 (Arising out of Order-in-Appeal No.13(MPM)CUS/JPR-1/2006 dt.31.3.06 passed by Commissioner(Appeals), Jaipur) CC, Jaipur Appellant Versus M/s. Flora Marbles Respondent
Appearance Sh. Sunil Kumar, Authorised Departmental Representative(DR) For Appellant None for Respondent Coram: Honble Mr. D.N.PANDA, JUDICIAL MEMBER Honble Mr. RAKESH KUMAR, MEMBER (TECHNICAL) Date of decision: 11.5.09 Order No.________________________ Per D.N.Panda:
None appeared for the Respondent.
2. Ld. DR Shri Sunil Kumar submits that the Revenue has been aggrieved by the order passed by the learned Commissioner(Appeals) on 31.3.06 holding that the impugned goods are Marble classifiable under Chapter heading No.2515.11 of Customs Tariff Act. That Appellate Authority know that the goods in question were put to technical test and the test proved that goods were found to be lime stone which is evident from page 40 of the appeal folder. Geological Survey of India examined the samples and came to above conclusion. Even the cross examination of the Senior Geologist on 23.2.06 do not show anything to hold that the goods were marble. Also he submits that when the words used in Tariff Entry calls for understanding its meaning in a scientific or technical sense, commercial parlance theory is not safe. For this proposition, he relies on para 25 of the judgment of the Honble Supreme Court in the case of Akbar Badruddin Jiwani vs CC reported in 1990(47)ELT.161(SC).
2. Heard Ld. DR. We are satisfied that meaning of a term if more safe to be acceptable according to the scientific and or technical sense under the law while interpreting a tariff entry, that term shall not get support of common parlance theory. This we are able to say following the Apex Court decision in Akbar Badruddins decision (supra), when we read para 54 & 55 of the judgment. We are satisfied that page 43 of the appeal folder demonstrates that the goods imported having been subjected to test and that was found lime stone, therefore, we are unable to understand how the ld. appellate authority came to conclusion otherwise when technical experts report dt.23.2.06 exists. We do not find merit in the order passed by the Ld. Commissioner(Appeals). We also notice here that the respondent is in third round of litigation. Absence of respondent shows no consciousness of exercising right to remedy before a legal forum when Revenue came in appeal against him. Notice issued to the respondent has come back with remarks left. We allow Revenues appeal for the aforesaid reasons restoring the order-in-original in toto. We do not find any cross objection on record in respect of the Revenues appeal. Absence of the respondent cannot be taken as a pleading in future to consider the cross object, if any, filed by the respondent.
Order dictated in the open Court.
(D.N.Panda)
Judicial Member
(Rakesh Kumar)
km Member Technical
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