2016 (4) TMI 536 - HC - Customs

Payment of redemption fine and anti-dumping duty - Confiscation of mulberry raw silk yarn of 3A grade of Chinese origin - second test report produced as the goods were of 3A Grade - Department itself agreed to a second test report - Held that - once the Department had agreed to a second test report without reserving any right to rely upon the first test report, it is not open to the Department to contend that the second test report ought to be dumped. The samples sent for the second test had also been drawn from the very same consignment. The samples were actually available with the Department. Therefore, no confiscation of goods required. - Decided against the revenue

Summary

Issues:
1. Interpretation of second test report under Section 144 of the Customs Act, 1962.
2. Validity of the second test report procedure and outcome.

Analysis:

Issue 1: Interpretation of second test report under Section 144 of the Customs Act, 1962
The appeal was filed by the Revenue challenging the order of the CESTAT regarding the second test report's validity. The questions of law revolved around whether the CESTAT correctly upheld the qualified and conditional second test report over the unqualified report by competent testing authorities in India under Section 144 of the Customs Act, 1962. The Tribunal allowed the appeal of the respondent based on the second test report indicating the goods were of 3A Grade. The Department agreed to the second test report without reserving the right to rely on the first test report, leading to the contention that the second test report should not be disregarded. The High Court found no conditions attached to the second test report and noted that the samples for both tests were drawn from the same consignment, ultimately upholding the Tribunal's decision.

Issue 2: Validity of the second test report procedure and outcome
The respondent filed a bill of entry for the clearance of an imported consignment of mulberry raw silk yarn, declaring it as 3A Grade. However, a laboratory report stated the samples belonged to 2A Grade, leading to a show cause notice and an Order in Original for confiscation. The Tribunal's decision in favor of the respondent was based on the second test report indicating 3A Grade. The Department argued that the second test report was qualified and conditional, but the High Court found no conditions attached to the report and upheld the Tribunal's decision. Consequently, the questions of law were answered against the revenue/Department, and the civil miscellaneous appeal was dismissed with no costs incurred.

In conclusion, the High Court upheld the Tribunal's decision regarding the interpretation and validity of the second test report under the Customs Act, 1962, emphasizing the lack of conditions attached to the report and the consistency of samples drawn for testing.