2014 (3) TMI 994 - AT - Customs

Imposition of penalty - Permission for allowed retesting of the goods nor allowed cross-examination of chemical examiner of CRCL - Held that - Commissioner (Appeals) did not rely on IIT report on the ground that Revenue did not refer the sample to IIT. When there was no pleading made before Commissioner (Appeals), there is no reason to grant relief before Tribunal on new grounds. Report from IIT having been obtained at the back of Revenue that does not become admissible evidence. IIT report was obtained by appellant on 26-4-2006 which was subsequent to report of CRCL, dated 9-8-2004. After CRCL report, two years expired and IIT report was obtained by the appellant without knowledge of the Revenue. Such conduct clearly shows that appellant had made misdeclaration for which it followed above dubious practice. There is no reason to appreciate any bona fide of the appellant in view of material fact recorded in paras 10 and 11 of adjudication order which clearly proves that CRCL having been equipped with technology and technical expertise, that cannot be brushed aside nor can testing by that Laboratory considered empty formality. - Decided against assessee.

Summary

Issues:
1. Challenge to CRCL report and request for retesting of goods.
2. Allegation of misdeclaration by Revenue based on CRCL report.
3. Admissibility of IIT report obtained without Revenue's knowledge.
4. Cross-examination of chemical examiner and departure from prescribed norm.
5. Bona fide of the appellant in declaring goods accurately.

Analysis:
1. The appellant contested the correctness of the CRCL report regarding the testing of imported polyester fabric. The appellant argued that the goods were correctly declared, as supported by an IIT report. The appellant sought retesting of the goods and cross-examination of the CRCL chemical examiner, which were denied by the adjudicating authority. The appellant contended that the CRCL report did not follow prescribed norms, making it invalid as credible evidence. Therefore, the appellant maintained that the classification of goods should not change, and no duty or penalty should be imposed.

2. The Revenue alleged that the goods imported by the appellant were misdeclared in terms of value and description, as evidenced by the unchallenged CRCL report. The Revenue questioned the validity of the IIT report obtained by the appellant without involving the Revenue, arguing that it should not be accepted as it was acquired without their knowledge. The Revenue urged that the adjudication should stand as the appellant did not provide any valid challenge to the CRCL report.

3. The Tribunal examined both arguments and reviewed the records. It noted that there was no mention of the necessity for cross-examination of the chemical examiner or the departure from prescribed norms before the Commissioner (Appeals). The Tribunal highlighted that the IIT report was obtained without the Revenue's involvement and after a significant time lapse following the CRCL report. The Tribunal concluded that the appellant's actions indicated a misdeclaration and dubious practices, undermining any claim of bona fide conduct.

4. Given the lack of pleading regarding the cross-examination and departure from norms at the previous stage, the Tribunal declined to grant relief based on new grounds. The Tribunal emphasized that the IIT report obtained behind the Revenue's back was inadmissible evidence. The Tribunal upheld the decision of the Commissioner (Appeals) due to the consistent findings of both lower authorities and dismissed the appeal.

In conclusion, the Tribunal found no reason to interfere with the lower authorities' orders, considering the lack of valid challenges and the questionable conduct of the appellant. The appeal was consequently dismissed, affirming the decision of the Commissioner (Appeals).