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TMI Blog2018 (11) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Tarun Gulati (Advocate) and Shri Pranav Bansal (Advocate) for Appellant(s) Shri Pawan Kumar Singh (Supdt.) AR for Respondent(s) ORDER Per: Anil Choudhary The issue in these appeals is whether the appellant exporters have exported Basmati Rice as permissible or have exported non-Basmati Rice which was a restricted item for export. This is the second round of litigation. Earlier these matters had come before this Tribunal in Appeal No. C/87 89/2010 and vide Final Order No. C/216 218/2011 this Tribunal observed that out of the samples sent for testing, all except one to CRCL and only one was sent to SGS lab. It was further noted that at the time of passing stay order, this Tribunal directed the Department to get one of the remaining samples tested by one of the testing laboratories notified under the Export Quality Control And Inspection Act, 1963. At the time of final hearing learned DR had stated that the test had been carried out and placed the copy of test report before the Tribunal. This Tribunal appreciated that such subsequent test reports were not before the Adjudicating Authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectors of the appellant-company, the other co-appellants, accepted the test reports received by Revenue from SGS and CRCL and further agreed to adjudication without show cause notice and personal hearing. Soon thereafter Order-in-Original dated 16 December, 2009 was passed by the Commissioner Customs placing reliance on the said reports received from SGS and CRCL and further on concession made by the directors of the appellant-company. It was held that the rice/goods to be exported were non-Basmati Rice, which was prohibited under Notification no. 93 (RE 2007)/2004 09 dated 01 April. 2008 and accordingly fine was imposed under Section 113(d)(i) of the Act and further penalty of ₹ 10 lacs was imposed under Section 114(i) of the Act. Being aggrieved the appellant had preferred appeal before this Tribunal in the earlier round wherein among other grounds, also stated that the said consent and/or confession made by them dated 11 December, 2009, was under coercion and undue influence, under threat of harm, more fully contained in the affidavit dated 12 October, 2010, which had been filed before the Tribunal in the earlier round. Appreciating the overall circumstances, this Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Rice Research (ICAR) to enquire the minimum number of judges required for testing aroma and texture of rice grains as prescribed in Office Memorandum 17 12/2007 SD.IV dated 29 May, 2008. It was replied that minimum 12 judges are required to do testing of aroma and texture of rice grains. The appellants also filed additional written submissions before the respondent-Commissioner, also making separate prayer for cross-examination of the chemist namely the chemists of CRCL, SGS and BEDF as well as RAL. Cross-examination was also prayed with respect to some of the officers of the Customs Department, who were involved in investigation. 5. The learned counsel further states that from the facts which have come on record subsequent to remand by this Tribunal, it is evident that none of the test reports obtained by Revenue give any conclusive finding, whether the rice exported is Basmati or non-Basmati. Further the appellants, at the time of export got the export consignment certified and/or tested by TCRC which had certified the samples to be of Basmati Rice, fit for human consumption. The learned counsel further points out from the test reports obtained subsequent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, it has been observed that the appellant had accepted the reports of CRCL and SGS and it is only before the Tribunal in appeal, that they prayed for retesting of the sample. Such report of retesting obtained from BEDF also have certified that it is not Basmati Rice. Hence, there is no need for cross-examination of the chemical examiner. So far the request for cross examination of Customs Officers, who involved in investigated and sent samples to the laboratory which were not AGMARK centres, it was observed that both CRCL and SGS are competent and even BEDF, Modipuram, have confirmed the findings of CRCL/SGS. Under the circumstances, observing that no purpose will be served by cross-examination of the Customs Officers, the prayer was rejected. Further placing reliance on the concession made by the directors of the appellant, the co-appellants herein, it was held that the appellant have exported non-Basmati Rice. 7. Having considered the rival contentions we find that under similar facts and circumstances with respect to two consignments exported by these very appellants in the near vicinity of the present exports in question a Single Member Bench of this Tribunal in Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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