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TMI Blog2017 (2) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of right under Section 124 of the Customs Act, 1962. Since, the appellant has been denied with its rights to cross-examine the expert, his report cannot be relied on for assessment of the Bill of Entry, which is contrary to the claim of the appellant. Appeal allowed - decided in favor of appellant. - Customs Appeal No.C/3495-3496/2012-CU[DB] - C/A/50171/50172/2017-CU[DB] - Dated:- 9-1-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) Present for the Appellant Mr. Jatin Mahajan, Advocate Present for the Respondent: Mr. K. Poddar, D.R. Per: S.K. Mohanty Brief facts of the c e are that the appellant had imported Brass Honey Scrap as per ISRI from Hong Kong and filed the Bill of En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f brass and copper and hence, is not covered by any of the grade of the brass and copper specified by the ISRI. On the basis of the report furnished by Shri M.N. Mathur, Chartered Engineer, the Department classified the imported goods as 'Mixed Brass and Copper Scrap' under sub-heading 74040029 and determined the value for the purpose of assessment at ₹ 53,15,287/-. Vide the adjudication order dated 30.09.2011, the Id. Additional Commissioner of Customs has confirmed the Customs duty of ₹ 11,13,075/- and appropriated the said amount deposited by the appellant to the Government account. Besides, the goods were confiscated and penalty of ₹ 5,00,000/- was imposed on the appellant. In addition, penalty of ₹ 2,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .), Andaman Timber Industries - Vs. - Commissioner of Central Excise, Kolkata-II 2015 (324) ELT 641 (S.C.) and also the decision of this Tribunal in the case of Sunrise corporation Vs. Commissioner of Custom. 3. On the other hand, Shri K. Poddar, the Id. A.R. appearing for the respondent reiterated the findings recorded in the impugned order. 4. Heard both sides and perused the records. 5. As the imported goods on physical examination were not found matching with the description furnished by the appellant in the import documents, the Department got the same examined by the Chartered Engineer, Shri Ramesh Chandra Agrawal, who had certified that the imported goods are confirming to the definition of 'Brass Honey Scrap&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods was not free from doubt. Thus, in such a case, the Department should have extended the benefit of favorable report submitted earlier to support the classification declared by the appellant. In this context, the Hon'ble Supreme Court in the case of Poulose And Mathen (supra) have held that where two opinions are possible, assessee should be given benefit of doubt and the opinion favourable to it should be given effect to. 6. Principles of natural justice have been violated in this case inasmuch as cross examination of the Chartered Engineer, Shri Mathur, whose report has been solely relied on for change in the description and classification of imported goods has not been allowed by the authorities below. We find that even thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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