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5.2 While casting aspersions in the CLRI report, ld. counsel has in the same breadth placed reliance on the said test reports issued by CLRI themselves in respect of samples sent by appellants. This has been done with intent to show that the CLRI reports in respect of the same leather are different and contradictory. However, it is not the case that the remnant samples of the one earlier tested by the CLRI have been cast to test by the appellant. On the other hand, appellant have themselves sent the samples on their own without following the procedural requirements of consignment samples. They have not drawn samples in the presence of all stake holders. In any case, it appears that they have been sent to CLRI after the earlier consignments have been allowed to be exported albeit on redemption fine etc. In the circumstances, when the appellant themselves are placing absolute reliance on CLRI report, in respect of sample sent by them, they cannot then make http://www.judis.nic.in Judgment dt.05.12.2019 in CMA.Nos.3240, 3264 & 3265/2019 [M/s.Hi Fasn Leather Products Co., Chennai V. The Joint Commissioner of Customs (Airport & Cargo), Chennai] aspersions at reports of CLRI on samples sent by the department.

http://www.judis.nic.in Judgment dt.05.12.2019 in CMA.Nos.3240, 3264 & 3265/2019 [M/s.Hi Fasn Leather Products Co., Chennai V. The Joint Commissioner of Customs (Airport & Cargo), Chennai]

3.The learned counsel for the appellant Mr.V.B.R.Menon vehemently submitted that the report of Central Leather Research Institute (CLRI) dated 16.10.2009, according to which, the sample of the leather of the present appellant was held not satisfying the norms and conditions laid down in the relevant notification as 'Finished Leather' was not justified, because the samples tested under the said report dated 16.10.2009 by CLRI, the goods were mentioned as 'Cow Softy Upper Leather (Crunch) Colour. OLIVE (VI) (1) (E), whereas the Assessee on export has mentioned in the Invoice as "Cow Crunch Upper Leather". He submitted that if the export was "Finished Leather", then the duty was not leviable under the provisions of the Customs Act, whereas if the goods on export were found to be 'not Finished Leather', levy of duty was attracted. He submitted that the Assessee himself obtained a Report from the same CLRI vide Report dated 22.10.2009 which satisfied the criteria of "Finished Leather" and description of goods in the said report dated 22.10.2009 were shown to be "Cow Lining Leather Colour. OLIVE (KISSEL) (IV)(1)". He further submitted that the basis of the report of the CLRI obtained by the appellant/Assessee, at his own instance, clearly showed that the Report obtained by the Revenue from CLRI vide report dated 16.10.2009 was not correct and therefore, the miscellaneous applications filed by the Assessee for holding a retest of the sample in question ought to have been allowed by the learned Tribunal before http://www.judis.nic.in Judgment dt.05.12.2019 in CMA.Nos.3240, 3264 & 3265/2019 [M/s.Hi Fasn Leather Products Co., Chennai V. The Joint Commissioner of Customs (Airport & Cargo), Chennai] dismissing the appeals of the Assessee. The said Miscellaneous Application Nos.C/Misc./40163, 40165 and 40167/2013 however came to be rejected on the ground that the said request was made before the Tribunal after a lapse of more than a decade and CLRI could not be expected to maintain those samples for a period of about 9 years or more for holding such retest, after the report dated 16.10.2009 was obtained from the CLRI by the Revenue Department. The learned counsel, therefore, urged that unless a retest is held, the imposition of the redemption fine and penalty by the Tribunal could not be justified.

4.Per contra, the learned counsel for the Revenue, M/s.Hema Muralikrishnan urged that the Report from CLRI was obtained by the Revenue Authorities on 16.10.2009 for the samples drawn out of the confiscated goods of the appellant/Assessee and merely because the description in the said report given as "Cow Softy Upper Leather (Crunch) Colour. OLIVE (VI)(1)(E)" is differently worded from the Description of the Goods as used in the Invoice or the Shipping Bills of the Assessee as "Cow Crunch Upper Leather", it cannot result in discarding the said Report, as the samples were taken from the confiscated goods of the appellant/Assessee only in accordance with the Rules and were sent to CLRI for investigation and giving the Report, whereas the Report obtained by the Assessee itself http://www.judis.nic.in Judgment dt.05.12.2019 in CMA.Nos.3240, 3264 & 3265/2019 [M/s.Hi Fasn Leather Products Co., Chennai V. The Joint Commissioner of Customs (Airport & Cargo), Chennai] was of the sample taken by Assessee itself without following the Rules and therefore, the Report dated 22.10.2009 obtained by the Assessee, which satisfied the test of its being "Finished Leather" for the sample "Cow Lining Leather Colour: OLIVE (KISSEL) (IV)(1)" could not be a ground for holding a retest after a long period of about a decade and therefore, the rejection of the said prayer of the Assessee by the learned Tribunal was justified. She submitted that the learned Tribunal has observed in the impugned order that on the basis of the report of CLRI dated 16.10.2009, the credibility of which is not disputed by the Assessee, the upholding of imposition of redemption fine and penalty to a nominal extent, cannot be assailed by the Assessee in the present Appeals and therefore, the Appeals filed by the Assessee deserve to be dismissed.

5.We have heard the learned counsels and have perused the records.

6.We are of the clear opinion that rejection of the prayer for retesting after a long period on the part by the Tribunal cannot be faulted. Even though the Assessee obtained a Report from the same Institute on 22.10.2009, the product description shown in that Report viz., "Cow Lining Leather Colour: OLIVE (KISSEL)(IV)(1)" is also not the same as the export of the goods in question which is subject matter of the present case viz., http://www.judis.nic.in Judgment dt.05.12.2019 in CMA.Nos.3240, 3264 & 3265/2019 [M/s.Hi Fasn Leather Products Co., Chennai V. The Joint Commissioner of Customs (Airport & Cargo), Chennai] 'Finished Leather'. The Report dated 16.10.2009 relied upon by the Revenue, gives the description of the sample is "Cow Softy Upper Leather (Crunch) Colour: OLIVE (VI)(1)(E)". A mere difference of description of the goods in these two Reports given by the CLRI itself, as obtained by the Revenue and Assessee, cannot be fatal to the reliance placed by the Revenue on the said Report dated 16.10.2009 which pertained to the confiscated goods only. The second Report dated 22.10.2009 obtained by the Assessee on the basis of samples sent by itself other than from confiscated goods cannot be said to be a ground to call for a retesting to be directed by the Tribunal after a long period, particularly where the description of the goods in the second report obtained by the Assessee itself is also different. These three different descriptions of the goods does not render the evidence relied upon by the Revenue viz., CLRI report dated 16.10.2009, non-est or unreliable.