9911796707
TMI Blog2003 (12) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... lenging the order of Commissioner of Customs, Visakhapatnam. In both these appeals, the appellants are exporters who filed shipping bills for exporting shrimps. M/s. Surya Udyog in the shipping bill described the product as processed, preserved and frozen headless shrimps of species white shrimp (cultured) Surya brand and M/s. Falcon described the produced as processed, preserved and frozen headless shrimps of species black tiger shrimps (penaeus monodon) (cultured), Indian origin, fresh, frozen, headless shell on white (cultured) and black tiger (cultured) shrimps typee and nice brands. During examination of the goods of M/s. Falcon, it was found that out of 650 cartons of the goods, 550 cartons were white shrimps carton and the 100 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai and their report clearly says that samples appear to be sea white. However, the Export Inspection Agency opined that complete identification of the species is possible only in the head on - shell on - tail on shrimps. The shrimps exported in the instant case were headless, therefore, identification report of Export Inspection Agency, Chennai automatically becomes irrelevant to conclusively establish that the impugned shrimps were sourced from the sea. They had produced certificate of MPEDA, Bhubaneswar before the identification report of Export Inspection Agency at Chennai. This report was brushed aside by the adjudicating authority as not at all satisfactory explanation without bringing on record contrary opinion of any other ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot be penalised on the basis of mere suspicion. It was also pleaded that personal opinion of the adjudicating authority cannot be basis of a decision in the course of adjudication of a case and relied on this Tribunal s decision in the case of Liberty Shoes Ltd. v. CCE, New Delhi [1999 (105) E.L.T. 422]. He also relied on the clarification given by Director General of Foreign Trade vide letter No. 01/86/40/ 1541/AM98/DES-V/14/1359, dated 18-6-1998 in reply to the query of the respondents on the subject which states :- ......possibility of such varieties (i.e. Black tiger and white shrimps) coming other than from aquaculture sources was visualized even at that time, but on account of practical difficulties which were faced in the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-declaration in it. 4. Heard Smt. Radha Arun, ld. SDR. 5. We have carefully considered the submissions made by both sides. We find that the main issue to be decided in these appeals is whether the impugned consignments of the shrimps being exported by both the appellants were cultured shrimps or the shrimps obtained from sea. 6. We find that the Commissioner in his order has stated that the exporter had given certain markings on the cartons and he interpreted these marking as SW as Sea White shrimps, WC containing mixture of sea white and cultured white shrimps and HLWC containing pink/brown shrimps. We find that for markings on the cartons, M/s. Falcon Marine had given explanation under their letter dated 14-12-1998. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that the complete identification of the species is possible only in the head on - shell on - tail on shrimps. 8. We find that the adjudicating authority has taken a decision on the basis of part of the report of Export Inspection Agency. He has not taken into consideration the clarification given that firm opinion can only be given in the head on - shell on - tail on shrimps. Therefore, reliance on their partial opinion taken into consideration cannot lead to a definite conclusion. It can be only a suspicion that the disputed shrimps are sea white shrimps. The suspicion, however grave it may be, cannot take the place of proof. 9. We also find that the appellants have also produced a certificate from MPEDA, Bhubaneswar certifying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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