2015 (7) TMI 1204 - HC - Customs

Classification of imported goods - Lime Stone Powder - The importer claimed exemption from payment of basic customs duty relying on a Notification bearing No. 46/2011-Cus., Sl. No. 192(1). Such exemption is available to specified goods when imported from specified country - The test report revealed that the samples have the characteristic of precipitated Calcium Carbonate. It is other than Calcium Carbonate (Natural) - petitioner requested for retesting - Held that - this Court directs the concerned respondent authority to send a sample of the goods imported drawn in presence of the writ petitioner for sending the same to the National Test House or any other reputed test laboratory which the respondent authorities may deem fit and proper for the purpose of retesting. The expenses of such test shall be borne solely by the writ petitioner. Till such time the report is made available, the impugned order of adjudication shall be kept in abeyance - matter on remand.

Summary

Issues:
Importer challenging order of adjudication, confiscation of goods, penalty imposition, redemption fine, reclassification of goods, retesting of samples, delay in providing test report details, entitlement to retesting.

Analysis:
The importer filed a writ petition challenging an order of adjudication confiscating goods under Section 111(m) of the Customs Act, 1962, imposing a penalty under Section 112(a)(ii), and allowing redemption under Section 125. The goods were directed to be reclassified, and duty, fine, penalty were to be paid before clearance. The importer filed a Bill of Entry for clearance of "Lime Stone Powder" from Vietnam, claiming exemption under a specific notification.

Samples were tested at the Chemical Laboratory in Kolkata, revealing characteristics of precipitated Calcium Carbonate, different from the declared goods. The importer requested retesting at a reputable lab, challenging the initial findings. The adjudicating authority rejected the request, claiming the importer sought retesting to avoid penalties.

The court noted that the test report details were provided late, with the show cause notice issued after the initial findings were communicated. The importer challenged the findings in its reply and requested retesting. The court held the importer was entitled to retesting based on the circumstances.

The court directed the respondent authority to send a sample for retesting at a reputable lab chosen by them, with expenses borne by the importer. The adjudication order was to be kept in abeyance until the retest report was available. The writ petition was disposed of, allowing for urgent copies of the order upon compliance.