Custom, Excise & Service Tax Tribunal
M/S. Raj Kumar Rakhi Ram vs Commissioner Of Central Excise on 7 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Customs Appeal No. 57414 & 57415 of 2013- Ex[SM]
[Arising out of Order-In-Appeal No. 389-390/Cus/Appl/NOIDA/2012 dated 26.12.2012 passed by Commissioner of Customs (Appeals ), NOIDA]
For approval and signature:
Honble Ms. Archana Wadhwa, 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?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
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
M/s. Raj Kumar Rakhi Ram Appellants
Jindal Industries
Vs.
Commissioner of Central Excise Respondent, NOIDA
Appearance:
Shri A P Mathur, Advocate for the Appellants Shri M S Negi, DR for the Respondent Date of Hearing: 13.2.2014 Date of decision: 07.03.2014 ORDER NO. FO/ A 50875-50876 /2014-Cu(SM) Per Archana Wadhwa:
Both the appeals are being disposed of by a common order as they arise out of same impugned order passed by authorities below.
2. After hearing both the sides, I find that M/s. Jindal Industries filed a shipping bill for export of consignment of 22.70 MT of Indian Basmati Rice at total declared FOB of Rs. 11,67,540/-. The said consignment was allowed to be exported, after testing the sample of the rice which were sent to Regional Agmark Laboratory, New Delhi, duly approved by DGFT.
3. As per the report dated 18.11.11 of the said Laboratory, the rice samples confirm to the requirement of length and length /breadth ratio as per DGFT Notification No. 55(RE/2008) (2004-2009) dated 5.11.2008. However, the said report also contain the statement to the effect that sample does not confirm to standard prescribed in the Basmati Rice (Export) Grading and Marking Rule, 1979 (absence of natural fragrance both in raw and cooked state).
4. From the above, Revenue entertained a view that rice in question were not basmati rice and as such, initiated proceeding for confiscation of the same and for imposition of penalties. The original adjudicating authority confiscated the rice though already exported with redemption fine of Rs.2 lakhs and imposed penalties of Rs.50,000/- each on both the appellants. The said order stand upheld by Commissioner (Appeals).
5. For better appreciation of Commissioner (Appeals) order, relevant paragraphs are being reproduced below:
4.6. From the perusal of above said notifications, I observe that during the relevant period Basmati Rice including Pusa Basmati 1121 Dehusked (Brown), semi-milled, milled both in either par-boiled or raw condition were allowed to export subjected to Nature of Restriction that grain of rice to be exported should be more than 6.61 mm of length and ratio of length to breadth of the grain should be more than 3.5. Further, I observe that the sample was sent to the authorised laboratory in order to variety identification of Basmati Rice. On perusal of the test result of the sample bearing NO. 35/2011. I find that the said laboratory has observed the average length of rice grain 7.68 mm and ratio of length to breadth of rice grain 4.2 mm, which are more than the length 6.61 mm and ratio of length to breadth 3.5 as prescribed under Notification NO. 55 (RE 2008) 2004-2009 dated 5.11.2008 read with Notification NO. 57/2009-2014 dt. 17.8.2010. The testing laboratory in its report has also confirmed this fact under Statement 2 that sample confirms to the requirement of length and length /breadth ratio as per DGFT Notification No. 55 (RE -2008)/2004-2009 dated 5.11.2008 but in its statement 1 it is reported that sample does not conform to standards prescribed in basmati rice (export) Grading and Marketing Rule 1979 (Absence of natural fragrance both in raw and cooked stage). The method of test reported as Method of Analysis of Basmati Rice prescribed by Director of Laboratories Central Agmark Laboratory Nagpur.
4.7 On perusal of the Notifications/ Circulars issued by DGFT regarding export and restriction of Basmati /non-basmati rice which were applicable during the relevant period, I find the following two main conditions:-
(i) Rice should be Basmati rice including PUSA Basmati 1121, and
(ii) The grain of rice should be more than 6.61 mm of length and 3.5 mm ratio of length to breadth.
Thus, to export rice, both the above conditions should have been fulfilled. If any rice grain has sufficient length and ratio of length/breadth but the same is not a basmati rice or PUSA Basmati 1121, it cannot be exported. Similarly, if any rice is Basmati rice or PUSA Basmati 1121 but the grain size does not attain the prescribed length and length/breadth ratio, the same also cannot be exported.
4.9 As regards the contention of the appellant that the fragrance is a matter of nasal condition of a particular person, I am of the view that since the test was conducted by a laboratory authorised the Govt. and the sample was tested in both raw and cooked state therefore such type of argument is not going to help the appellants. Regarding contention for re-testing of the sample, I find that the appellant in their reply to the show cause notice, had requested the ajduciating authority for retesting, disagreeing with the report to the extent of admixture percentage only whereas the main reason for disqualifying the standards of basmati rice, was the absence of natural fragrance as per the Statement 1 of the test result and the same was never disputed by the appellant. Thus, I do not find any infirmity in the impugned order for not allowing re-testing of the sample.
6. As is seen from the above reproduced portion of the impugned order, there is no dispute about the length of the grain and length / breadth ratio of the same. It seems that lower authorities have held against the appellant by observing on the ground that there is absence of natural fragrance in the said rice and as such, they do not confirm to the standard of basmati rice prescribed in Basmati Rice (Export) Grading and Marketing Rule 1979. However he himself has observed that only two criteria prescribed in the notification for considering the rice to be basmati rice are the length and length and breadth ratio of the grain which standard is fully satisfied in the present case. The lower authorities have not referred to any notification issued by DGFT in terms of which the 1979 Rules are also required to be satisfied. I also find favour with the appellants contention that fragrance is the matter of nasal condition of particular person and as such, what may be fragrant to one may not be so to another person. The appellants request for re-test has also been rejected. Infact, I find that test report laying down in favour of the assessee in respect of requisite condition, there was no need for re-testing of the samples.
7. However, inasmuch as the lower authorities have adopted the standard prescribed in Basmati Rice (Export) Grading and Marketing Rule, 1979 and as also criteria for fragrance without disclosing any requisite rules in terms of which the said parameters are required to be examined, I deem it fit to set aside the impugned order and remand the matter to original adjudicating authority for re-examining the issue. Needless to say that appellant would be given an opportunity to putforth their case.
8. Appeal is thus allowed by way of remand.
(Pronounced in the open court on )
( Archana Wadhwa ) Member(Judicial)
ss
??
??
??
??
2