9911796707
TMI Blog2007 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... customs duty and concessional rate of 15% of additional duty in terms of Notification No. 336/90-Cus. dated 20-3-1990 was not admissible as the goods were tested and found to have phosphorous content of 0.0589% by weight (in respect of B/E No. 57) and 0.058% by weight (in respect of B/E No. 87) which was in excess of the stipulated percentage. 2. The case was initially adjudicated by the Asstt. Commissioner by his Orders-in-Original dated 13-10-1995 and 2-11-1995; both the orders were upheld by the Commissioner of Customs (Appeals) by Order-in-Appeal dated 6-4-1998; the importers preferred appeals bearing Nos. C/737/98 and C/153/01 before the Tribunal which, by its Order No. C-I/3360-62/WZB/2001 dated 19-4-2001 [2004 (177) E.L.T. 1094 (Tribunal)] remanded the case for de novo adjudication to the adjudicating authority after making available to the importers, the procedures that were followed with regard to sampling and the method that was followed in testing samples, so that it can be determined whether the Indian Standard Specifications 436 and 1350 were complied with and permitting the importers, if they considered necessary, to question the methodology of sampling and testin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or testing. The Commissioner has sought to overcome the Tribunal's remand order again by recording his finding at para 11 of the impugned order that at no stage, prior to the proceedings before the Tribunal, did the importers challenge the method of drawal of samples and testing of goods and has relied upon para 30(a) of the Central Manual of Chemical Laboratories to hold that mere fact of acceptance of samples by Custom House Laboratory establishes that they were drawn as per the instructions contained in the Departmental Manual and sent in a sealed condition to the Custom House Laboratory. [Para 30(a) provides that all the officers concerned with sampling and testing under Collectors of Excise and Customs should be instructed to familiarize themselves with the ISI Procedures on drawal of samples and before signing for any sample, the sample clerk must make sure that it is securely sealed and that the seal is intact, and that the description on the label of the container tallies with that on the document and if the sealing is imperfect, or the seal damaged or if there is serious discrepancy in the description of the sample between the labels affixed to the containers and that show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative and not objected to, and CRCL officer who had analyzed the samples forwarded by the department had only acted in his professional capacity and that too as per the ISI specifications, which is borne out from his report contained in letter dated 17-9-1993 and 19-10-1993. These reports were available before the Tribunal in the earlier round of litigation and yet the Tribunal permitted the importers to question the method of sampling and testing. The reliance placed by the Commissioner in para 18 of the order on the Apex Court decision in M/s. Kanungo and Co. v. CC, Calcutta [1993 (13) E.L.T. 1486 (S.C.)] and the Hon'ble Calcutta High Court decision in M/s. Tapan Kumar Biswas v. UOI, 1996 (63) ECR 546 (Cal.) to hold that grant of cross-examination is not an essential constituent of following the principles of natural justice in quasi-judicial proceedings under Sec. 124 of the Customs Act, 1962, is misplaced for the reason that the facts of those cases are distinguishable and the position has been explained in the Tribunal's order in Suresh Udayalal Jain v. CC(P), Mumbai [2000 (126) E.L.T. 1143] wherein the Tribunal has held that "It is not possible, on reading the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Shri Ashok Desai urged, and we agree with him, that the case of Kanungo Co., was not on all fours with the case now before us. In that case, enquiries had been made by the Customs authorities from other parties on a question of fact as to whether the dealers acquired the watches from them. The other parties had apparently denied such acquisition. The dealers had sought that all such other parties should be allowed to be cross-examined by them, and the Supreme Court had held that the principles of natural justice did not require that they should have been given such an opportunity. Shri Ashok Desai pointed out that in that case the enquiries were as regards questions of fact. In the present case, the opinions of the "experts" were on the basis of their status as experts, and on a matter relating to tariff classification. The appellants had legitimately asked for an opportunity, firstly to verify whether the persons were really experts, and secondly to rebut the opinions said to have been expressed by them. Denial of this opportunity undoubtedly amounted to a denial of natural justice. 13. We find force in these arguments of Shri Ashok Desai. We would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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