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TMI Blog2014 (5) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in spite of the importers disputing the earlier Test Report and that the direction of the ld. Adjudicating Authority for re-testing was not followed – Principle of natural justice was not followed in this case and therefore, in the interest of justice, it would be prudent to remit back the case to the ld. Adjudicating Authority for fresh order – Decided in favour of assesse. - APPEAL NOs.C/A/140-141/2009 - ORDER NO.FO/A-71043-71044/2013 - Dated:- 16-9-2013 - DR. D.M.MISRA AND DR. I.P.LAL, JJ. FOR THE APPELLANT: DR. S. CHAKRABORTY, ADVOCATE ASSISTED BY SHRI A.BISWAS, ADVOCATE FOR THE RESPONDENT: SHRI D.K.ACHARYA, SPECIAL COUNSEL ASSISTED BY SHRI S.CHAKRABORTY, A.R.( ASSTT. COMMR.) JUDGEMENT Per Dr. I.P.LAL These Appeals have been filed against Order-in-Original No.KOL/CUS/PORT/02/2009 dated 09.01.2009 passed by Commissioner of Customs (Port), Kolkata. 2. The facts of the case in brief are that M/s. Jupiter Trading Co. had filed a Bill of Entry No.159877 dated 06.03.2003 declaring the goods as Tube for Emergency Light . The goods imported were 1,80,000 pieces of 9 watt and equal number of the goods of 11 watt of Evershine brand, valued at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, show cause notice bearing DRI F.No.36/Kol/App/2003/1002 under even number 922-928 dated 22.05.2003, alleging misdeclaration of the description of the goods to evade Anti-Dumping Duty and the under-valuation, was issued to various noticees. The show cause notice was adjudicated by the ld. Commissioner of Customs (Port), Kolkata. 4. The ld. Adjudicating Authority redetermined the value of the goods based on the contemporaneous imports, as US $0.15 per piece (CIF) in terms of Rule 5 read with Rule 8 of the Customs Valuation Rules, 1988, against two impugned Bills of Entry. Against the goods imported under Bill of Entry No.159877 dated 06.03.2003 and consigned to M/s. Jupiter Trading Co., the ld. Adjudicating Authority confirmed the duty-demand (including Anti-Dumping Duty) of Rs.1,95,30,315/- along with the interest @15% on the said duty from the date of assessment till the date of payment, confiscated the goods with an option to redeem the said goods on payment of redemption fine of Rs.13.00 lakh and imposed penalty of Rs.1,95,30,315/- on Shri Akshay Mahajan, Proprietor of M/s. Jupiter Trading Co., New Delhi. In case of the goods imported against Bill of Entry No.159931 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g lamps were falling under Chapter Sub-Heading 8539.29. The goods were cleared accepting their classification. The Tribunal held anti-dumping duty was not chargeable as the CFL falls under Chapter Sub-Heading 8539.31. It is the contention that in the appellant s case the goods were assessed not under chapter heading 8539.31 and therefore anti-dumping duty was not imposable. 5.3. It is the submission of the ld. Advocate that in case of Philips India Vs. CCE, Mumbai reported in 2004 (166)ELT 49 (Tri.-Mumbai), Tribunal held that the imported items discharged to mounted on shell cover and plastic cones were considered only part of CFL meant for further manufacture of CFL. 5.4. The ld. Advocate further cited the case law in case of Wipro Ltd. Vs. Commr. of Customs, Chennai reported in 2007 (217) ELT 558 (Tribunal). In this case the appellants had imported shield glass tubes and claimed classification under CTH 8539.90. The authorities sought to recover anti-dumping duty under notification No. 138/2002-CUS dated 10/12/2002 by holding the goods to be CFL after getting a sample of the goods tests at Electronics Regional Test Laboratory, Kolkata and considering their report. Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Test Laboratory (East), Government of India, confirming the imported goods as CFL. Since the CFL of Chinese origin were subjected to Anti-Dumping Duty under Notification No.138/02-Cus. dated 10.12.2002, whatever value is taken, Anti-Dumping Duty is attracted, as the goods in question were determined by expert laboratory as CFL. As such, various case-laws referred to by the Appellants are not relevant for the present case. As regards advanced rulings, it is binding only on the applicant who had sought it. Ld. Special Counsel submitted that identical goods were imported against a price of US $ 0.15 per piece, vide Bill of Entry No.I-424 dated 10.06.2002 and I-109 dated 04.10.2002. The market enquiry also indicated retail sale price of Rs.57 and Rs.63 per piece in case of Tube for emergency light of 9 watt and 11 watt respectively. The importer moved the Hon ble High Court, the Hon ble High Court directed the DRI to summon the persons to record their statements and complete the investigations, giving some time-limit for issue of show cause notice. In view of these facts, the ld. Special Counsel stated that findings of the ld. Commissioner in his Order-in-Original are well-founded on f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta was requested that the sealed samples already drawn in respect of the consignment should be sent for re-testing to some Government laboratory. One set of samples may also be sent to laboratory at the importer s choice. However, the impugned Order-in-Original is silent on the outcome of the fresh test, if any 8. It, therefore, appears that samples were not re-tested in spite of the importers disputing the earlier Test Report and that the direction of the ld. Adjudicating Authority for re-testing was not followed. In view of these facts, we are of the considered opinion that principle of natural justice was not followed in this case and therefore, we feel that in the interest of justice, it would be prudent to remit back the case to the ld. Adjudicating Authority for fresh order, after drawal of fresh samples in presence of the Appellants/their authorized representatives and its re-testing by forwarding the representative samples to both the Laboratories named by the ld. Advocate for the Appellants and the ld. Special Counsel to determined whether the impugned goods were the CFL with/without choke or otherwise. A copy of the Test Report should be furnished to the Appellants bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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