2008 (4) TMI 647 - AT - Customs

Testing - Re-test - Request by aggrieved person - Held that - In absence of report on retest, the matter cannot be finalized - It is undisputed that appellants had requested for re-test of the remnant sample. Without expressing any opinion on the merits, we are of the view that the appellant s request for re-testing the sample should have been considered, before passing the impugned order - appeal allowed by way of remand.

Summary

Issues:
Appeal against Order-in-Appeal upholding less charge demand and penalty imposition; Request for re-testing of copper content; Compliance with Customs Manual Chapter 3 para 19.

Analysis:
The judgment involves two stay applications challenging the impugned Order-in-Appeal that confirmed less charge demand and penalty imposition. The Tribunal decided to dispose of both matters through a common order since the issues were identical. The appellants argued that the copper content was not accurately determined by the testing laboratory, DYCC, and requested re-testing of the remnant sample. The adjudicating authority did not provide reasons for denying the re-testing. The Commissioner (Appeals) noted DYCC's credibility but acknowledged the appellants' right to contest test reports. The Tribunal emphasized that lower authorities should have allowed re-testing as per Customs Manual Chapter 3 para 19, especially since the appellants had requested it. The absence of a re-test report rendered the matter inconclusive, leading to the impugned order being set aside.

The Tribunal remanded the matter to the adjudicating authority for a decision after obtaining the re-test report on the remnant sample. It was emphasized that the appellants must receive a copy of the re-test report and be granted a personal hearing before any conclusion is reached. The appeals were allowed by way of remand, ensuring procedural fairness and compliance with the appellants' request for re-testing. The judgment highlights the importance of following established procedures and providing opportunities for re-testing when requested, as per relevant customs regulations.

This comprehensive analysis of the judgment showcases the Tribunal's focus on procedural fairness, adherence to customs regulations, and ensuring that appellants' requests for re-testing are duly considered and acted upon.