2023 (12) TMI 692 - AT - Customs

Classification of imported goods - Kerosene - to be classified under CTH 2710 1990 of the Customs Tariff Act, 1975 or not - Power of commissioner (appeals) to remand back the case - HELD THAT - Having disputed the classification, the Revenue approached an expert and obtained the expert s opinion, whereas the appellant, having filed its Bills-of-Entry, did not lead any evidence, but kept on raising objections after objections in the approach of the Department as well as the expert opinions. No affidavit is filed, nor did it file any iota of evidence in its support. Hence, going by the dictum of the Hon ble Apex Court in HINDUSTAN FERODO LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, BOMBAY 1996 (12) TMI 49 - SUPREME COURT , it is required to go by the only evidence available, that is, expert opinion of CRCL, New Delhi since, admittedly, the appellant did not lead any evidence. Classification, as it is understood, cannot be determined based only on arguments since arguments, howsoever forceful, cannot take the place of proof or substitute evidence. The Revenue in order to reach the conclusion as to the classification of the impugned goods, has placed reliance on the expert opinion and the same is not based on assumptions and presumptions and nor is it the personal view of the adjudicating authority. There are no piece of evidence to take a contrary view to the finding of the first appellate authority as to the classification of the imported goods as Superior Kerosene Oil by rejecting the uncorroborated classification as LAWS by the appellant - the Commissioner (Appeals) should have closed the case instead of remanding the matter back to the file of the original authority, which is against the amended provisions of Section 128A of the Customs Act, 1962, which has withdrawn the power of the Commissioner (Appeals) to remand the case for fresh adjudication except for those issues mentioned at Section 128A(3)(b), which does not cover the impugned issue. The order of the original authority is restored - Appeal dismissed.

Summary

Issues Involved:
1. Legality of the remand order by the first appellate authority.
2. Classification of the imported goods.
3. Reliability and conclusiveness of the CRCL Test Report.
4. Onus of proof in classification disputes.
5. Applicability of IS 1459 standards for classification.

Summary:

The primary issue raised by the appellant was the legality of the remand order by the first appellate authority. The appellant contended that the first appellate authority should have passed an order based on the available materials instead of remanding the matter back to the adjudicating authority. The Tribunal found merit in this contention, noting that the first appellate authority lacked the power to remand the case for fresh adjudication under the amended provisions of Section 128A of the Customs Act, 1962.

Regarding the classification of the imported goods, the appellant claimed that the imported consignments were Low Aromatic White Spirit (LAWS) and classified them under CTH 2710 1990. However, the Revenue, based on expert opinions from the Chemical Examiner and the Central Revenue Control Laboratory (CRCL), reclassified the goods as 'Superior Kerosene Oil' under CTH 2710 1910. The Tribunal upheld the reclassification, emphasizing that the burden of proof, initially on the Revenue, was discharged once expert opinions were obtained.

The appellant challenged the reliability and conclusiveness of the CRCL Test Report, arguing that it did not meet the required parameters and was inconclusive. The Tribunal rejected this challenge, stating that the appellant did not raise objections at the appropriate stages and failed to provide any evidence to counter the expert opinion.

On the issue of the onus of proof, the Tribunal reiterated that while the initial burden was on the Revenue, it was sufficiently discharged through expert opinions. The appellant's failure to provide contrary evidence meant that the Tribunal had to rely on the available expert opinion.

Concerning the applicability of IS 1459 standards for classification, the appellant argued that the product should be tested against IS 1459-1974 standards rather than IS 1459-2018. The Tribunal found this argument unpersuasive, noting that the appellant did not provide evidence to support its classification under the older standard.

In conclusion, the Tribunal dismissed the appeal, set aside the remand order by the first appellate authority, and restored the order of the original authority, thereby upholding the reclassification of the imported goods as 'Superior Kerosene Oil'.