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TMI Blog2012 (9) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent, filed seven Shipping Bills for export of goods declaring the same as readymade garments made out of silk fabric under claim of duty drawback. Goods were examined 100% by the custom authority and samples were drawn for testing. Shipments were allowed provisionally on execution of P.D Bond and Bank guarantee. Custom House laboratory, Kolkata in their Test Report stated that the goods were made of cotton and polyester instead of silk fabrics as declared in the Shipping Bills. Accordingly a Show Cause Notice was issued by their applicant department, which was subsequently adjudicated by the original authority by imposing fine of Rs. 3,00,000 /- and penalty of Rs. 1,50,000/- vide Order-in-Original dated 6-1-2004. The respondent filed writ petition No. 2759(w) of 2004 against the said Order-in-Original dated 6-1-2004 before the Hon ble Kolkata High Court. The Hon ble High Court vide order dated 9-3-2004 remanded the case back to the adjudicating authority for a fresh decision after re-hearing the matter. The case was re-adjudicated and a fine of Rs. 3,00,000/-and penalty of Rs. 1,00,000/- was imposed vide Order-in-Original dated 14-11-2005. Being aggrieved with the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. M- 201/A-682, dated 25-4-2007. 3.2 That Commissioner (Appeals) in his Order-in-Appeal dated 10-11-2009 has erred in holding that the party has requested several times for retesting of the samples during the adjudication stage(s). In fact during the adjudication proceedings as stated here in before, the said exporter has never submitted formal reply. However they submitted written submission only once during Personal Hearing on 26-9-2005 in the 2nd adjudication proceedings. Nowhere in the said submission any such plea was made by them for retesting of the sample nor referred in any Adjudication Order. Even in the earlier appellate stage, they have never made such request. This is a new submission made by party as referred in the present Order-in- Appeal. 3.3 That the party in their written submission before Commissioner (Appeals) have mentioned that test carried out by textile committee also shows that the goods were made out of silk which had never been disclosed earlier to the department during the Adjudication stages, earlier Appeal stages, in the Writ petitions filed in the Hon ble High Court as well as before CESTAT. This is rather a new submission made by them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion by the department is that the Commissioner (Appeal) should not taken a new ground of the respondent which is again baseless and is legally not correct Rule 5 prescribed for production of additional evidence before the Commissioner (Appeals) Clause-4 of the above said rules specifically gave the jurisdiction to take any documents, or the examination of any witness, to enable him to dispose of the appeal. The Hon ble Supreme Court of India in the case 1998 (99) E.L.T. 200 (S.C.) M/s. National Thermal Power Co. Ltd. v. Commissioner of Income Tax held that Appellate Authority has all the powers which the original authority may have in decide the questions before Its subject to statutory restriction or limitations of any section 35A and 35C of Central Excise Act 1994 - Sections 128A and 129B of Customs Act, 1962. The order passed by the single Judge of the Hon ble Kolkata High Court attained finality whereby the customs deptt. was given direction to retest the sample of the goods exported by the respondent. 4.4 The Customs Deptt. never disclosed before the Commissioner of Customs (Appeals) or before the Hon ble Kolkata High Court that the sample of the goods are not traceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certified that they received goods which are Taffeta fabric - Burden shifts to Revenue to show that certificate is false or fabricated - Investigation highly defective and on basis of test report at Cochin docks, one cannot come to an inescapable conclusion that goods are not Taffeta fabrics - Benefit of doubt goes to applicant - Order of rejection of drawback, confiscation and penalty set aside - Sections 75, 113 and 114 of Customs Act, 1962. 4.5 Our case is squarely covered by the above said two decisions passed by the CESTAT. (i) That in our case the samples kept with the custom department are not traceable. Therefore retesting is not possible. That the CESTAT in the case 2007 (208) E.L.T. 535 (Tri) cited above observed that samples are not available with department - No justification for upholding the impugned order. (ii) That the foreign buyer certified on 21-4-2003 by sending the letter to the respondent that they received the readymade garments (made wholly out of 100% silk warf/weft). Secondly the respondent received the foreign exchange against the goods exported by them. That the above said facts are covered by the CESTAT decision reported 2007 (211) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 21-10-2003 is produced by the respondent which bear Custom House Calcutta receipt stamp dated 21-10-2003. Hence, Government finds that the applicants contention that the respondents earlier never made any plea for re-testing of samples does not hold good. Government further notes that during the course of personal hearing held on 8-4-2011 in this Revision Application the applicants and in their letter F. No. 8/41 (Misc)-2(03) CCx dated 11-3-2011, Commissioner Customs, Air Cargo Complex, Kolkata have mentioned that remnant samples were not available with them now. Government observes that this is the first time the applicant Department has stated the fact that samples are not available with them. They have never revealed this fact before Hon ble High Court on three occasions as stated by the respondent in their written reply dated 19-5-2011 27-5-2011, discussed above in para 4. In the revision application filed on 24-3-2010, there is no such pleading that remnant samples were not available. 7.2 Regarding applicant s pleading that Rule 5 of Customs (Appeal) Rules, 1982 debars production of additional evidence before Commissioner (Appeals). Government notes that order rete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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