2013 (10) TMI 624 - AT - Customs

Waiver of Pre-deposit - Mis-declaration of Goods - export of Goat Shoe Suede Upper Leather - finished leather or not - Held that - The applicant did not ask for any re-test - Further that applicant waived the right for receiving written show cause notice though they expressed surprise at the test report - After foregoing his right for asking for retest at that time and even right for show cause notice, they cannot be asking for retest in appellate stages in order to prolong this old matter - The right for retest should have been exercised as soon as the test rest results were known to the applicant - After accepting the test reports and agreeing for adjudication without show cause notice, there was no reason to encourage such request for retest at the first appeal stage or second appeal stage - Considering facts and circumstances of the case we order the applicant to make a deposit - pre-deposit of balance dues arising from the impugned order is waived and its collection is stayed during pendency of appeal - Partial stay granted.

Summary

Issues:
1. Export of goods misclassified as finished leather.
2. Confiscation of goods, imposition of fine, export duty, and penalty.
3. Request for retest of samples and waiver of pre-deposit for appeal.

Analysis:
1. The case involved the export of goods labeled as 'Goat Shoe Suede Upper Leather,' with Customs Officers suspecting that some cartons contained raw leather instead of finished leather. Samples were sent to the Central Leather Research Institute (CLRI) for testing, which confirmed that the goods were not finished leather. Consequently, the goods were confiscated, and a fine of Rs.50,000/- was imposed, along with export duty and penalty.

2. The applicant appealed the decision, arguing for a retest of the samples before the Commissioner (Appeals), claiming that shaving had been done on the exported goods, contrary to CLRI's report. The Revenue contended that the right for retest should have been exercised earlier, as the test results were known to the applicant, and that CLRI's expertise should not be questioned. The Tribunal held that the applicant had waived the right for a retest by accepting the initial test report and adjudication without a show cause notice. Therefore, a deposit of Rs.70,000/- was ordered within six weeks, with a waiver of the balance dues pending the appeal.

3. The Tribunal emphasized that allowing a retest request at the appeal stages would unduly prolong the matter, especially considering the export took place in 2010. The decision to uphold the deposit requirement was based on the circumstances of the case and the applicant's actions. The Tribunal's ruling balanced the need for procedural fairness with the practicality of the situation, ensuring compliance while granting some relief in the form of a waived pre-deposit for the remaining dues during the appeal process.