Customs, Excise and Gold Tribunal - Delhi
Shree Balaji Trade Overseas vs Cc, (Gen) on 25 June, 2003
Equivalent citations: 2003(88)ECC828, 2003(162)ELT659(TRI-DEL)
JUDGMENT
S.S. Kang (J), Member
1. Appellants filed these appeals against the adjudication orders passed by the Commissioner of Customs. As the common issue is involved, both the appeals are being take up together.
2. In Appeal No. C/549/02-D, the facts are that the appellants made import of consignment of 60 packages of 100 per cent polyester fabric of non-texturied filament (in stock lot) and 100 per cent polyester warp knit fabric (in stock lot). Appellants filed a Bill of Entry dated 6.4.2000 and claimed classification of 100 per cent polyester fabric of non-texturised filament (in stock lot) under heading 5407.61 of Customs Tariff and 100 per cent polyester warp knit fabric (in stock lot) under heading 6002.43 of Customs Tariff. The examination of the consignment could not be carried out due to mishandling of the cargo by Air India. The consignment was handed over to M/s. Air India at Dubai for carriage from Dubai to Delhi. Out of 60 packages, 29 packages were brought directly from Dubai to Delhi by M/s. Air India and remaining 31 packages were brought by M/s. Air India from Dubai to Mumbai and thereafter, were transhipped from Mumbai to Delhi. It was found that out of 60 packages, 48 were marked and 12 were unmarked. The unmarked 12 packages were taken into possession by the Customs authorities. Thereafter, the Customs authorities had taken 13 samples from 60 packages and as per the Customs authorities, the samples were not in accordance with declaration made in the Bill of Entry. The adjudicating authority confiscated 12 unmarked packages. The adjudicating authority, on the basis of test report, also classified the imported goods under different headings and confirmed the differential duty and 48 packages were also confiscated on the ground of misdeclaration and allowed the same to be released on payment of redemption fine of Rs. 1.50 lakh and a penalty of Rs. 2.50 lakh was also imposed.
3. Heard both sides.
4. The contention of the appellants is that they are not claming 12 unmarked packages. Their contention is that the consignment was mis-handled by M/s. Air India and during investigation it was found that at the time of transportation at Dubai, all the packages were duly marked. Thirteen samples were taken from 60 packages including 12 unmarked packages and out of these 13 samples, six samples were found to be as per declaration filed by the appellants. Their contention is also that as the consignment was mis-handled and 12 unmarked packages were not the same, regarding which the Bill of Entry was filed, the test report, which also shows that the samples from 12 unmarked packages, cannot be made the basis for misdeclaration on the part of the appellants. Appellants also contended that they asked for re-test of the samples, but their request to re-test was declined on the ground that there was no valid reason for re-testing.
5. Ld. D.R., appearing on behalf of the revenue, submitted that as per the test report, there was clear mis-declaration by the appellants.
6. In this case, we find that the appellants made import of the goods in 60 packages. The consignment was mishandled by M/s. Air India. This fact is not disputed by the revenue. Out of this consignment 12 packages were unmarked and the appellants are not claiming those packages. The adjudicating authority also held that 12 unmarked packages had been either substituted or tempered with and these 12 packages are not the similar to other 48 packages. The Customs authorities had taken 13 samples at randum from all the 60 packages. It is not clear that how many samples were taken from 48 marked packages and from 12 unmarked packages. Out of 13 samples, six were found as per declaration filed by the appellants. In these circumstances, the charge of mis-declaration on the part of the appellants is not sustainable. Therefore, the impugned order, except the confiscation of 12 packages, is set aside and the appeal is allowed.
7. In Appeal No. C/408/2002-D, appellants made import of a consignment of 100 per cent polyester fabric of non-texturised filament and 100 per cent polyester warp knit fabric and filed a Bill of Entry on 22.3.2000. After examination, the goods were cleared. The show cause notice was issued to the appellants on the ground that in the subsequent consignment, which is a subject-matter of the earlier Appeal No. C/549/02-D, appellants mis-declared the goods in respect of Bill of Entry dated 6.4.2000.
8. The contention of the appellants is that in this consignment, no sample was taken and the consignment was cleared after due examination. The Customs authorities demanded duty on the ground that in the subsequent consignment, appellants misdeclared the similar goods and this fact was admitted by the proprietor of the appellant company.
9. Ld. DR reiterates the findings of the lower authorities.
10. In this appeal, the allegation is that the appellants mis-declared the goods. The basis of the allegation is the subsequent import of the similar goods. From the consignment, in question in this appeal, no sample was taken. The Customs authorities relied upon the statement of the proprietor of the appellant company. There is no other evidence that the appellants had mis-declared the goods in this consignment, therefore, the charge of mis-declaration, on the basis of subsequent consignment, which is also found unsustainable, cannot be the basis for the demand of differential duty. Therefore, the impugned order is set aside and the appeal is allowed.