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TMI Blog2011 (3) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... his capacity as proprietor of M/s. Suspense Kahaniya and therefore, a separate penalty on him is warranted, demand of duty raised against M/s. Suspense Kahania is upheld, confiscation upheld, redemption fine imposed is reduced, penalty on M/s. Suspense Kahaniya is also upheld, demand of duty confirmed against the M/s. Gautam Traders, M/s. Chardi Kalan and M/s. Kissan Mittar are set aside, Penalty imposed on M/s. Gautam Traders is set aside, penalties on M/s. Educator, M/s. Bharat Desh Hamara, M/s. Chardi Kalan, and M/s. Kissan Mittar are reduced, penalties on Shri S.K. Gupta and Shri J.S. Dardi are reduced to Rs. One lakh each - C/585-587/2005 & C/603-607/2005 - C/161-168/2011(PB) - Dated:- 15-3-2011 - S/Shri S.S. Kang, M. Veeraiyan, JJ. REPRESENTED BY : Shri A.R. Madhav Rao, Advocate, for the Appellant. S/Shri Sonal Bajaj and K.K. Jaiswal, SDR, for the Respondent. [Order per : M. Veeraiyan, Member (T) (for the Bench) (Oral)]. M/s. Gautam Traders (Appeal No. 585/05), M/s. Suspense Kahaniyan (Appeal No. 587/05), M/s. Educator (Appeal No. C/603/05), M/s. Bharat Desh Hamara (Appeal No. C/604/05), M/s. Chardi Kalan Publications (Appeal No. C/605/05), and M/s. Kiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numbers as per the Bill of Entry and the vessel number mentioned in the bill of Entry under which the imports were made by M/s. Chardi Kalan and M/s. Kissan Mittar. On this ground demand of Rs. 4,67,862/- on M/s. Chardi Kalan and demand of Rs. 4,71,379/- from M/s. Kissan Mittar cannot be sustained. He also submits that in respect of imports by Suspense Kahania, though the reports relate to coated real papers, the percentage of mechanical wood pulp shown as 50% and 70 % are contrary to the test reports of the samples which were given to them and which they got tested from CPPRI on 27-2-02, according to which the mechanical wood pulp was 74%. He also submits that burden of classification is on the department and therefore, their prayer for cross examination of experts from IIPT, Saharanpur which was not granted is in violation of principles of natural justice. Therefore, he submits that demand of Rs. 1,76,539/- is not sustainable. 3.2 Coming to the issue of diversion of newsprint paper imported in the names of M/s. Bharat Desh Hamara, M/s. Chardi Kalan and M/s. Kissan Mittar, he submits that statement of Shri S.K. Gupta and his employees stand retracted. Similarly, the admission d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the import made by M/s. Gautam Traders are not eligible for the benefit of exemption under S. No. 78 to Notification No. 11/97. He has relied on the report of samples tested by CRCL. The appellants have submitted before the Commissioner that reports of CRCL in respect of samples drawn from consignments imported by M/s. Gautam Traders sent by DRI was tested and the results were in favour of the appellants. While this submissions have been recorded, no findings in this regard has been given by the Commissioner. It is also not denied that originally samples were drawn and the consignments are allowed to be cleared extending the concession. Subsequently, why samples drawn were sent to more than one agency for testing is not forthcoming. The fact remains that reports of one of the agency is in favour of the claim by the appellants. Therefore, we are inclined to give the benefit of doubt to the appellants. The demand of differential duty raised on Gautam Traders in respect of imports made in their names denying the benefit of exemption notification is therefore set aside. The confiscation of the goods imported in the name of M/s. Gautam Traders is also to be set aside on the same grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as produced chemical examination report which indicated that the conditions are not satisfied, the department has discharged its burden of proving the classification. No valid reason has been adduced by the appellants to challenge the order of the Commissioner in respect of demand made against the assessee M/s. Suspense Kahania. The goods are also liable for confiscation for having mis-declared the contents and thus claiming the classification as news print. 5.5 Coming to the finding of diversion of goods imported by M/s. Suspense Kahania, M/s. Educator, M/s. Chardi Kalan and M/s. Kissan Mittar, we find that what was imported in the name of these parties were in the premises owned by Director Shri S.K. Gupta or Shri J.S. Dardi who were not specifically authorised for importing newsprint in the names of these parties. The submissions of Shri S.K. Gupta and Shri J.S. Dardi and submissions of some of the dealers clearly confirm diversion of part of the imported goods in the name of these parties. The retraction dated 10-3-98 of the statement given by Shri J.S. Dardi on 28-2-98 is not only belated but also does not refer to any points on which admission was made in his statement date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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