2014 (12) TMI 898 - AT - Customs

Import of goods as cotton polyester fabric died oven fabric of cotton - Classification of goods - Classification under CTH No. 521131.90 or CTH 521142.00 - Confiscation of goods - Misdeclaration of goods - Held that - There is no findings of the Commissioner on the issue whether the assessment was provisional. We also find that the grievance of the Appellant of re-testing of the samples has not been acceded to by the adjudicating Commissioner. Commissioner in his order has merely observed that there is no need to refer the sample to any other laboratory for further testing as the test report of the departmental Chemist are to be preferred to opinion of outside agencies while classifying a product. We do not endorse this view of the ld. Commissioner especially as the Appellant had challenged the test report of the Customs House Laboratory. Appellant has taken the plea that they had requested for assessment under First Check and therefore there cannot be intention to evade duty. - as the sample was not re-tested the remnant sample if any should be sent to the CRCL New Delhi after following proper procedure and a copy of the said report should be supplied to the Appellant before deciding the case - Matter remanded back - Decided in favour of assessee.

Summary

Issues: Mis-declaration of imported goods, provisional assessment, imposition of penalty, intention to evade duty, re-testing of samples

Mis-declaration of imported goods:
The case involved mis-declaration of imported goods by the Appellant, who declared the goods as cotton polyester fabric but were found to be Denim. The Customs House Laboratory confirmed the mis-declaration, leading to differential duty demands, confiscation, and penalties imposed by the Commissioner.

Provisional assessment:
The Appellant argued that as the goods were provisionally assessed, the confiscation, duty demands, and penalties imposed were premature. They cited legal precedents supporting their claim that penalty proceedings cannot be initiated without completing the assessment proceedings.

Imposition of penalty:
The Commissioner confirmed differential customs duty, confiscated the goods, and imposed penalties on the importer for mis-declaration. The Appellant contested the penalty imposition, claiming that the assessment was provisional and penalty proceedings were premature.

Intention to evade duty:
The Appellant contended that they requested assessment under "First Check," indicating no intention to evade duty. They argued that the extended period to demand duty should not be invoked in their case.

Re-testing of samples:
The Appellant requested re-testing of samples, challenging the test reports. The Tribunal found that the Commissioner did not address this issue adequately and remitted the case back for a fresh decision, emphasizing the need for proper re-testing and consideration of all raised issues.

In the final judgment, the Tribunal set aside the Commissioner's order, allowing the appeal by way of remand. The case was sent back for a fresh decision, ensuring proper consideration of all issues raised by the Appellant and emphasizing the importance of re-testing samples before making a final determination.