9911796707
TMI Blog2000 (7) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under the Customs law. 2. Briefly stated the facts of the case are that M/s. Narayan Vegetables Industries (P) Ltd., Biratnager, Nepal imported the 400 MTs. of impugned goods by describing the same in the Customs Transit Declaration (CTD) as Crude Palm Oil . The Chemical Examiner, Calcutta Custom House, tested the representative sample drawn on 20-5-1999. In his Test Report dated 25-5-1999, the Chemical Examiner has given the following findings : - The sample is in the form of dull white thick liquid composed of fatty oily material. It does not exhibit characteristic colour and odour of Crude Palm Oil. It answers the test for cholesterol which is commonly present in oil/fat of animal origin. On a reasonable belief that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sterol which was determined by way of colour test as per ISI specification, (d) the fatty acid composition percentage is not relevant to determine whether the sample is Crude Palm Oil, (e) the fatty acid composition percentage is relevant for determining the percentage of animal fat present in the oil. However, the Customs House Laboratory does not have the facility to determine fatty acid composition percentage 2.3 Commissioner of Customs, Calcutta vides his Order No. 54/99-Commr., dated 6-8-1999 held that the oil in question cannot be considered as Crude Palm Oil. He, therefore, ordered confiscation of the same, but allowed re-export on payment of a fine of Rs. 9 lakhs and also imposed a penalty of Rs. 1 lakh on the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Departmental Chemical Examiner is wholly misconceived. According to him, simply because the impugned oil being in dull white colour it does not cease to be Crude Palm Oil. The Chemical Examiner did not answer the specific question put to him in the Test Memos - whether the samples were of crude or refined palm oil and whether it contained any animal fat. He, therefore, argues that reliance on such Test Reports is wholly illegal and invalid. Specially when the ld. Commissioner has ignored the Test Report dated 7-5-1999 of M/s. Allied Chemists Laboratory, SDN, BHD, Malaysia, Certificate dated 6-5-1999 of M/s. Kong Hoo Pte Ltd. and relevant pages from the publication Treatise on Fats, Fatty Acids Oleo- chemicals . 3.3 The ld. Advocate su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and nature of the goods at the place of importation. The Test Report and the certificate obtained by the foreign supplier at the time of shipment can be held to be a doctored and manipulated document brought into existence to lend support to their theory that the goods are Crude Palm Oil whereas in fact they are not so. The various contentions of the appellant with regard to fatty acid percentage and cholesterol percentage are also not relevant specially in view of the fact that, as clarified by the Chemical Examiner, the Prominent presence of Cholesterol in the sample was clearly found out by way of colour test as per the ISI Specification and fatty acid composition is not at all a relevant factor to be considered to determine whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as such there is no scope to invoke or apply Section 111 (d) ibid. (e) In respect of such transit goods, the only legal requirement was to file Customs Transit Declaration and it was duly filed. No Bill of Entry was filed or required to be filed in respect of such goods in transit to Nepal. There was also no mis-declaration of any nature in respect of the said goods and as such there is no scope to invoke Section 111 (m) ibid. (f) In the show-cause notice, it was alleged that there was collusion between the appellant and the foreign supplier. However, in the entire order there is nothing whatsoever to show any collusion. In fact, no penalty was levied on the foreign supplier. 7. It is observed that Clause (i) of sub-para (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exporting the same to India after undertaking only a simple process of hydrogenation in Nepal. The question is whether the action taken by the Indian Customs can be treated as having been taken on a valid reason . To my mind, such Intelligence cannot be considered as a valid reason to examine the goods contained in the container subjected to one-time-lock system. As such, the act of opening of container by Calcutta Customs being illegal , ab initio, the subsequent actions including confiscation of the goods and imposition of penalty cannot be held to be legal. It is true that the importer has mis-declared the goods in the Customs Transit Declaration. But there is no evidence on record to prove that there was collusion between the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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