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TMI Blog2014 (12) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... served that there is no need to refer the sample to any other laboratory for further testing as the test report of the departmental Chemist are to be preferred to opinion of outside agencies while classifying a product. We do not endorse this view of the ld. Commissioner, especially as the Appellant had challenged the test report of the Customs House Laboratory. Appellant has taken the plea that they had requested for assessment under “First Check” and therefore there cannot be intention to evade duty. - as the sample was not re-tested, the remnant sample if any should be sent to the CRCL, New Delhi after following proper procedure and a copy of the said report should be supplied to the Appellant before deciding the case - Matter remanded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for ascertaining the composition of fabrics, its GSM and whether the fabrics were Denim. The Customs House Laboratory in their report dated 5-10-2005 opined, inter alia, that the tested samples had the characteristics of Denim fabrics; that the fabrics were three thread twil weave oven fabric and in the construction of the fabrics blue coloured died yams entirely made of cotton in one direction and white textured polyester filament yarn reinforced with other materials in other direction had been used. As the goods were tested to be Denim and are specifically mentioned under CTH 52i 142.00 of the first schedule to the Customs Tariff Act, 1975; it appeared that the description of the goods in the bills of entry were mis-declared. Similar mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with intention to evade payment of duty. 3. Accordingly show cause notices dated 31-10-2005 and 7-2-2006 were issued proposing the confiscation of the impugned goods, demanding differential duty on account of Denim attracting higher rate, interest at the appropriate rate and for imposition of penalty on the importer M/s. S.K. Enterprises and its proprietor Shri Kamal Chand Surana and CHA M/s. Technotib Eastern (P) Ltd. for his active assistance to the importer. Show cause notices were adjudicated by the Commissioner by a common order. The ld. Commissioner confirmed differential Customs duty of ₹ 32,57,758/- and ₹ 49,24,108/- pertaining bills of entry No. 10/ICD/2005 and 12/ICD/2005 respectively and duty amounting to ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that Section 11A of the act provides for a penal provision. Before a penalty can be levied, the procedures laid down therein must be complied with. It held that the proceeding under the Section 11A of the act cannot, therefore be initiated without completing the assessment proceeding. It is submitted that the provisions of Section 11A are pari materia with the provision of Section 28 of the Customs Act. The Advocate further submitted that Hon'ble Calcutta High Court in the case of A.S. Syndicate (Warehousing) Pvt. Ltd. v. CC (Port) - 2011 (267) E.L.T. 469 (Cal.), under para 21 of the order observed that there can be no question of any demand, and in any case no interest or penalty under final assessment. It is submitted that the Co-ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessment was not made and goods were provisionally released as the importer was pressing hard for the said release. However, while releasing the goods the interest of Revenue was protected by way of bond and bank guarantee. It is the submission that in this case, show cause notices demanded duty under Section 28 of the Customs Act, 1962. It further proposed the confiscation of goods and imposition of penalty for mis-declaration of goods. It is submitted that the ld. Commissioner dealt with both the issues and confirmed the demand under Section 28 of the Customs Act, 1962 and adjudicated the offences by the importer as provided under section 124 of the said Act. 6. After hearing both sides we find that as per ld. Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse Laboratory. Appellant has taken the plea that they had requested for assessment under "First Check" and therefore there cannot be intention to evade duty. We find that ld. Commissioner in his order has not addressed various issues as mentioned above. In these circumstances, we remit the case back to the ld. Commissioner for deciding the case afresh after considering all the issues raised by the Appellant. We make it clear that as the sample was not re-tested, the remnant sample if any should be sent to the CRCL, New Delhi after following proper procedure and a copy of the said report should be supplied to the Appellant before deciding the case. It is made clear that we have not expressed our opinion on any of the issues and all the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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