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TMI Blog2009 (6) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... g nature of the goods imported. Taking into consideration all the facts and circumstances on record and the law laid down by the Apex Court, we find no substance in the contentions sought to be raised on behalf of the appellants and consequently the appeal fails and is hereby dismissed. - C/38/2009 - A/232/2009-WZB/C-II/CSTB - Dated:- 11-6-2009 - Justice R.M.S. Khandeparkar, President and Shri A.K. Srivastava, Member (T) Shri Anil Balani, Advocate, for the Appellant. Shri P.K. Agarwal, DR, for the Respondent. [Order per: Justice R.M.S. Khandeparkar, President (Oral]. - The appeal is taken up for final hearing in terms of the order passed in Stay Application No. 75/09. Heard the ld. advocate for the appellants and the ld. DR. for the respondents. We have also perused the records. In the present appeal the appellants challenge the order dated 13-12-08 passed by the Commissioner of Customs, Nhava Sheva, whereby the assessable value of the goods imported under 26 Bills of Entry during the period August, 2004 to February, 2005 was fixed to the tune of Rs.3,21,28,452/. at US 542 PMT in terms of Rule 6 of Customs Valuation Rules, 1988 and thereupon the differential Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. As regards the failure to afford opportunity to cross examine the persons whose statements were recorded, it is sought to be contended that mere denial of cross examination would not amount to failure to comply with the principles of natural justices unless the reason or purpose of the cross examination is disclosed before raising the issue of failure to comply with the principles of natural justice. As regards the second ground, it is sought to be contended that the findings arrived at are clearly borne out from the record. 3. The ld. advocate appearing on behalf of the appellants apart from drawing our attention to the IIT report in respect of the product imported by the appellants as well as the contents of reply to the show cause notice and the correspondences on behalf of the appellants addressed to the respondents, has sought to rely upon the decision of the Apex Court in Amba Lal v. Union of India and Others reported in 1983 (13) E.L.T. 1321 (S.C.) and in Swadeshi Polytex Ltd. v. Collector of Central Excise , Meerut reported in 2000 (122) E.L.T. 641 (S.C.) in support of his contention in the matter. He has further submitted that the impugned order apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be argued that it is settled law that what is shown to have been admitted need not to be proved separately. According to the ld. D.R. valuation has been correctly done by applying the law as provided under Rule 6 of the said Rules. Reliance was sought to be placed in decision in the matter of Surjeet Singh Chhabra v. Union of India reported in 1997 (89) E.L.T. 646 (S.C.), Commissioner of Central Excise, Madras v. Systems Components Pot. Ltd . reported on 2004 (165) E.L.T. 136 (S.C.); Vinod Solanki v. Union of India reported in 2008 (228) E.L.T. 17 (Bom.); Collector of Central Excise, Shillong v. Wood Craft Products Ltd. reported in 1985 (77) E.L.T. 23 (S, C.) and Veto Co. v. Collector of Central Excise reported in 1992 (62) E.L.T. 554 (Tribunal). 4 . The first point which arises for consideration is whether there was non compliance of the principles of natural justice either on account of non supply of the copies of the statements relied upon while fixing the liability of the appellants or on account of failure to afford opportunity to cross examine the persons whose statements are relied upon. Perusal of the impugned order, undoubtedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement, copy of which was also filed along with the reply to the show cause notice and to which our attention was drawn by the ld. D.R. It was stated therein that on 24-5-2005, the Custom Authorities had exercised undue pressure on the deponent and had derived the so called statement as per their say. Referring to the same, it was sought to be argued that the retraction statement nowhere discloses that the Custom authorities had recorded anything apart from what was stated in the reply to the show cause notice pertaining to the nature of the goods imported. 9. The reference to the statement in the impugned order is essentially in relation to the nature of the imported goods by the appellants. As rightly pointed out by the ld. D.R. even the reply to the show cause notice clearly states that in a statement by Shri Hamid to the Customs authorities it was stated that the goods imported were industrial soap noodles of lower grade and on previous occasion also the imported material comprised of soap noodles of lower grade and not of prime quality. In fact, the same has been undoubtedly the cause for initiating the proceedings against the appellants. Once it was evident from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before closing this aspect of the case, some observations have to be made in respect of the manner in which the statement given by the appellant when the goods were seized was used against him by the Customs authorities. ft would be seen from the order of the Collector of Central Excise as well that of the Central Board of Revenue that they had relied upon the statement alleged to have been made by him at the time the search was made in his house in order to reject his case that he brought some of the items of goods into India in the year 1947. The appellant in his reply to show cause notice complained that his statement was taken in English, that he did not know what was recorded and that his application for inspection and for the grant of a copy of his statement was not granted to him. It does not appear from the records that he was given a copy of the statement or that he was allowed to inspect the same. In the circumstances we must point out that the Customs authorities were not justified to rely upon certain alleged discrepancies in that statement to reject the appellant's subsequent version. If they wanted to rely upon it they should have given an opportunity to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement of some persons who had allegedly utilized the said waste for the purpose of spinning yam. In those facts, the counsel appearing before the Apex Court had submitted that the appellants ought to have been given an opportunity to cross examine those witnesses in order to determine whether the waste in question could have been categorized as fiber for the purpose of levy of excise duty and that he had no intention to cross examine other witnesses whose statements might have been relied upon by the authority. Having recorded the said submission and the point for consideration, the Apex Court disposed of the matter with the following order: - "In the facts and circumstances of the present case, we consider that this contention is well-founded. When the Collector has to decide afresh, he should, if he intends to rely upon the statement of any such person, give an opportunity of cross-examination to the appellant. The appeal is disposed of in the aforesaid terms. No costs." 13. Undisputedly, the Apex Court directed, in the facts and circum stances of the case of Swadeshi Polytex Ltd. that the appellants therein should give an opportunity to cross examine the deponents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple of natural justice." It is pertinent to note that the Apex Court has further observed that- "it is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention." 16. The law, therefore, on the point of right to cross examine witness is well settled. It is not that in each and every matter before the adjudicating authority in relation to the tax liability that the assessee would be entitled to cross examine the persons whose statements recorded without disclosing the purpose for which the same is required. Besides, in a case where the facts which are sought to be established on the basis of the contents of the statements, of the wit nesses are not only to the knowledge of the assessee but are clearly admitted by the assessee in other documents in the same proceedings, mere rejection of refusal of cross examination of such persons would not result in failure of principles of natural justice. Hence, we do not find any substance in the first ground of challenge in the matter. 17 . The sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have enumerated the documents which have been enclosed along with the said reply and they are as under:- (i) Contract dated 1-12-04 between EDO Chemicals SDN BHD for 1200 MTs@$179/-PMT (ii) Certificate from ECO PALM certifying that Tropical Achievement SDN BHD is their parent Company and that they are purchasing Industrial soap flakes Grade-2 and they are selling to all their buyers around the world including India © $ 203/-PMT. (iii) Contract dated 2-6-04 between M/s. EDO Chemicals SDN BHD and Tropical Achievement SDN BHD for 3000 MTs. for $ 180/- PMT. The above items do not include any certificate or report from FIT. The appellants have not placed before us any other document which could reveal that any rest report from IIT was ever submitted along with the said reply to the show cause notice. Being so, merely because the adjudicating authority has not referred to such report, which was never submitted to the adjudicating authority, can it be a ground to accuse the adjudicating authority of having not applied his mind to the materials on record? Non consideration of the material which had not been placed on record cannot be said to amount to non application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the original report was submitted by the appellants to the adjudicating authority either on 31-3-2007 or at any time thereafter. There is nothing on record to show that the report dated 18-6-2008 is the true copy of the so called report dated 27-9-2005 allegedly obtained by the appellants for the purpose of forwarding the same to the adjudicating authority. Being so, it would be highly improper for this Tribunal to interfere with the impugned order on the basis of the report dated 18-6-2008. As already observed above, the authority cannot be blamed for non consideration of the report which was never placed before it. 23. It is also to be noted that as rightly pointed out by the ld. D.R. ISI specifications cannot be a determinative factor for the purpose of classification of the goods. The law in that regard is well settled and the decision of the Apex Court in the matter of Indian Aluminium Cables Co. Ltd. v. Union of India reported in 1985 (21) E.L.T. 3 (S.C.) and followed by the Tribunal in Veto Company supra is very clear. Further, it is fortified by the decision of the Apex Court in Plasmac Machine Mfg. Co. Pvt. v. Collector reported in 1991 (51) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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