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TMI Blog2019 (5) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi. In the said report, the method of testing of samples has been narrated. There is no opinion about the contents of the samples. Therefore, the said reports also would not be of any help to the Appellant. The learned Commissioner extrapolated the test results of the samples to the consignments which were imported and cleared in the past. In absence of any adverse test report of the samples relating to past consignment, there is no merit in the order of the Adjudicating authority, to apply the test results of the samples drawn to the past consignments in directing confiscation and denying the benefit of exemption N/N. 21/2002-Cus, dt.1.3.2002. Consequently, the test report, be restricted to the consignment of packing papers whose samples were drawn and tested and found to be free from Sodium Meta Bi Sulphite. However, since there is mis-declaration of the description of the imported goods, in order to avail the benefit of exemption Notification No.21/2002-Cus, dt.1.3.2002, the goods which were seized and released provisionally are liable to confiscation and the importer and the persons associated are liable for penalty. The Appellants are not eligible to the benefit of N/N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed and the goods were directed for confiscation and penalty were also imposed on the importer and other noticees as well under various provisions of the Customs Act, 1962. Hence, the present appeals. 3. At the outset, learned Advocate Mr. S.P. Mathew for the appellant has submitted that even though in the first chemical test report dated 30.5.2005 of Dy. Chief Chemist, Mumbai returned the remnant sample opining that the presence of Sodium Meta Bi Sulphite could not be tested, but in the second test report dated 10.6.2005, on testing of the samples, it was opined that the same was free from sodium meta bisulphite . Also, the sample tested by Central Revenue Chemical Laboratory (CRCL), New Delhi, on the fresh samples drawn in its rest report it was opined that the sample is free from sodium bi sulphite . The request for cross-examination of the chemical examines/experts by the appellant has been denied by the adjudicating authority. It is his contention that the denial of cross-examination of the experts resulted in grave injustice to them, hence, the said reports should not be relied. In support, he referred to the following judgments: - (a) Tul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the benefit of Sr. No. 153 of the Notification No. 21/2002-Cus dated 1.3.2002. The test results of the chemical test on the sample drawn from the consignment for which Bill of Entry No. 567313 filed on 10.5.2005 revealed that it is free from sodium meta bi sulphite ; the principal condition to claim benefit of Sr. 153 of Notification No. 21/2002 dated 1.3.2002. After the consignment dated 10.5.2005 they have imported further six more consignments and Bill of Entry for clearance of four consignments claiming exemption under Notification No.21/2002-Cus, which on chemical test also found to be free from sodium meta bi sulphite. 6. It is his contention that besides the chemical test carried out in the Customs Laboratory at Mumbai and also at CRCL, New Delhi, the statements of various persons recorded during the course of investigation, particularly that of Shri Dilip Patel claimed to be authorized representative of the importer revealed that they have mis-declared the imported goods as Fruit grape guard packaging paper coated with sodium meta bi sulphite to avail the benefit of exemption. The Ld. Commissioner has rightly rejected the request for cross-examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sodium Meta Bi Sulphite could not be chemically examined. The remnant samples were later sent again and also fresh samples were drawn and sent to CRCL, New Delhi. Samples on the subsequent imports were also subjected to chemical test. The test report dt.10.06.2005 and later reports of samples of subsequent imports revealed that the samples were free from Sodium Meta Bi Sulphite. On the basis of the said test report, investigations were carried out and statements of various persons were recorded. In his statement, Shri Dilip Patel, who claimed to be the authorised signatory of M/s Salasar Imports admitted to have been imported the goods mis-declaring the same as Fruit Grape Guard Packaging Paper coated with Sodium Meta Bi Sulphite . He retracted the said statement furnished before the Customs authorities but later withdrew the said retraction and reiterated the statement furnished earlier. Analysing the test reports and the statements recorded during the course of investigation, the adjudicating authority came to the conclusion that the consignments imported by the Appellant on which necessary chemical test were carried out to ascertain the presence of Sodium Meta Bi Sulphite, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity and subsequent test report of Dy.Chief Chemist, Mumbai and CRCL, New Delhi indicated that the samples do not contain Sodium Meta Bi Sulphite, hence the said reports cannot be relied upon, without subjecting the experts/chemical examiners to cross examination. Advancing reasons for not containing Sodium Meta Bi Sulphite in the sample of the imported paper it is stated that the same may be due to delay in import and also delay in test of the samples. The Appellant has further argued that the paper imported initially, contained Sodium Meta Bi Sulphite but, either due to decay or evaporation during storage, traces of Sodium Meta Bi Sulphite could not be found in the sample. 13. Rebutting the said argument, the learned A.R. for the Revenue has submitted that Sodium Meta Bi Sulphite is not a volatile substance and could not be evaporated during storage after its import for the simple reason that the melting point of Sodium Meta Bi Sulphite 1700C is more than 700C of the boiling point of water. Besides, the Sodium Meta Bi Sulphite coated paper is imported for preventing the decay of grapes during storage for longer period. In the event, Sodium Meta Bi Sulphite evapora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L, New Delhi. In the said report, the method of testing of samples has been narrated. There is no opinion about the contents of the samples. Therefore, the said reports also would not be of any help to the Appellant. 16. During the course of chemical test of the samples of consignment against Bill of Entry dt.10.05.2005 and samples of subsequent imported consignments against four Bills of Entry, the results of the samples revealed that it is not coated with Sodium Meta Bi Sulphite. Thus, the Adjudicating authority inferred that the description of the goods was mis-declared in order to avail exemption under Notification No.21/2002-Cus, dt.1.3.2002, hence, directed confiscation of the goods seized and released provisionally with an option to redeem the same on payment of fine. 17. However, the learned Commissioner extrapolated the test results of the samples to the consignments which were imported and cleared in the past. In absence of any adverse test report of the samples relating to past consignment, we do not find merit in the order of the Adjudicating authority, to apply the test results of the samples drawn to the past consignments in directing c ..... 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