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TMI Blog2023 (9) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... s also mentions that the university has not undertaken any studies regarding the use of such chemicals in the post-harvest scenario. Therefore, the certificate cannot be said to be conclusive. Moreover, the Jammu Centre of the University has certified that the said chemicals can be used for treatments of apples; the Department counters the submissions of the appellants and the opinion of the Jammu Centre of the University merely by stating that as apples are not grown in Jammu, the certificate cannot be relied upon. If the Department did not want to rely upon the technical opinion, the same should have been done by countering technical opinion by expert opinion authoritatively countering the opinion given. This having not been attempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oever so as to negate the findings of the learned Commissioner. Under the circumstances, no case has been made out against the impugned order. The impugned order is sustainable and requires no interference - Appeal of Revenue dismissed. - HON BLE Mr. S. S. GARG , MEMBER ( JUDICIAL ) And HON BLE Mr. P. ANJANI KUMAR , MEMBER ( TECHNICAL ) Shri Nikhil Kumar Singh, Authorised Representative for the Appellant Shri R.K. Hasija and Shri ShivangPuri, Advocate for the Respondent ORDER Per : P. ANJANI KUMAR M/s FIL Industries Pvt Ltd. earlier known as (M/s Kohinoor Industrial Agro Products), are an EOU engaged in manufacture and export of Apple Concentrate; they have imported three chemicals viz. Captan Tech, Dodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, University of Agricultural Sciences Technology, Jammu; the contention of the Department that the opinion given implies that only minimal quantities can be used and that the opinion of Jammu Centre of the University cannot be relied upon as apples are not grown there. 4. Learned Counsel submits that Department relies upon Letter, dated 19.07.2002 by Sher-E-Kashmir University of Agricultural Sciences Technology, Kashmir, giving the opinion that the said chemicals cannot be used beyond the pre-harvest stage; however, Department has lost the sight of the confirmation in the very same certificate that the said university has not taken up studies on the post-harvest application of these fungicides; it is not open for the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puts is produced. Therefore, the Department cannot allege clandestine removal on the basis of certificates given by technical persons. He submits that a number of times officers have visited the premises and no discrepancy of stock of inputs has been found; the OIO is silent whether balance stock was verified on 04/05-09-2001. He also submits that the assertion of the Department that the chemicals have been used after the expiry shelf life is not based on any proof; moreover, it is not for the Department to decide that the chemicals can be used or not after expiry period. 7. Heard both sides and perused the records of the case. The case of the Department stands on two suppositions i.e. (i) as per the opinion of Sher-E-Kashmir, University ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same should have been done by countering technical opinion by expert opinion authoritatively countering the opinion given. This having not been attempted or done, the Department cannot brush aside the technical opinion as per the whims and fancies or even for Revenue considerations. We find that learned Commissioner has, categorically, observed that the Jammu unit of the university have given opinion at the instance of the Department only and the Department cannot be selective in using the reports. 8. Another defence advanced by the respondents was that the learned Commissioner has confirmed the demand on the allegation that the goods imported duty free have been clandestinely cleared; however, no evidence to this effect has been produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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