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TMI Blog2023 (10) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of UNION OF INDIA VERSUS OSWAL AGRICOMM PVT. LTD. [ 2010 (7) TMI 712 - GUJARAT HIGH COURT] as well as the clear observation of the Tribunal in the earlier remand order now the entire reliance can be made on the CIPET report only and no reliance can be made on customs laboratory report. Therefore, in view the above clear report of the CIPET the goods cleared from appellant s SEZ is a plastic sticker and correctly classifiable under Customs Tariff Heading 39 19 9010. Whether the goods are undervalued or otherwise? - HELD THAT:- There is no evidence was found to established that the appellant have undervalued the goods. Accordingly, the value declared by the appellant are correct being a transaction value and no addition can be made. The whole purpose of restriction is to avoid clearance of Plastic Waste and Scrap in the DTA as per the policy is that the hazardous goods should not be supplied in the DTA - In the present case the CIPET report clearly states that the goods i.e. Plastic Stickers are not hazardous in the nature. This also strengthen the case of the appellant that the goods is neither restricted nor prohibited. Hence, the entire case of the department fails ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the direction of CESTAT, in de novo adjudication, Learned Commissioner vide impugned order confirmed the demand against the appellants and imposed the penalties. Being aggrieved with the impugned order appellants have filed the present appeals before this tribunal. 2. Shri Vikas Mehta Learned Consultant with Shri Rahul Gajera Learned Advocate appearing on behalf of the appellants submits that the impugned order passed by the Learned Commissioner is incorrect, illegal and bad in law. In fact the finding of the Customs Laboratory, Kandla and the CIPET Laboratory are vastly differing opinions. It must be stated herein that while on one hand the Customs Laboratory, Kandla has opined that the sample of the imported goods were Plastics Waste /Scrap and not conforming to the description/classification as provided in the Bills of Entry, but on the other hand the CIPET has opined that the sample sent for testing conform to the classification provided and the sample were not hazardous in nature. Thus essentially what CIPET has concluded is that the sample sent for testing were in fact Plastic Stickers conforming to the classification in the Bills of Entry as submitted by the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and/or Poly Propylene, from waste generated by various processing operations . Thus clearly and unambiguously it can easily be discerned that the very nature of the sample has been differed on by the CIPET and the Customs Laboratory, Kandla. Thus in light of such a crucial variance it is indeed puzzling as to how the Ld. Adjudicating authority could possibly have held that both test reports have come to identical finding. 2.4 He argued that on the aspect of Classification also the Ld. Adjudicating Officers has failed to appreciate that while the CIPET has observed that the sample conform to the Classification submitted by the Importer in the Bills of Entry, on the other hand the Customs Laboratory, Kandla has opined that It is not sticker or any of the items covered by the CTH 3919 . Furthermore, most importantly while the Customs Laboratory has not given any finding with regard to the Toxic hazard posed by the sample, the CIPET however has given a clear finding in this regard by stating that .free from any kind of Toxic/Non Toxic contamination and has not been to any previous use . Thus clearly the CIPET had in its findings set out 3 major aspects that the samples of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce confiscated goods are destroyed by any circumstance beyond the control of the parties, then any duty demand and other leviable charges would naturally abate on the destruction of such goods. Ld. Adjudicating authority in his decisions has not once referred to this crucial fact that the goods in questions are not in existence any longer which by itself would suggest that Ld. Adjudicating authority has causally brushed aside this issue which otherwise has a definite bearing on issue being decided in the impugned order. 2.7 He also submits that Respondent department had initially requested the CIPET to analyze the sample drawn from the confiscated goods vide communication dated 27.08.2004 and subsequently on 05.10.2004. The CIPET had communicated its report to the respondent department. As opposed to this the department had requested the Customs Laboratory to analyze the sample drawn from the confiscated goods vide communication dated 12.11.2004 which in other words was after the CIPET report had been received by the respondent herein. Department had in its possession the CIPET report in October November 2011, then there should ideally not have been any reason or requirement f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LOP) for manufacturing of recycled plastic granules/Flacks/Agglomerates /Pallets/Barrs/Powder. The said SEZ units were also permitted to do trading of all items except restricted, prohibited, canalised items and plastic waste scrap. IN the present case, the said SEZ units sold imported plastic stickers whether or not printed, embossed or impregnated classifiable under 39199010 of the Customs Tariff Act, 1975 and supplied to M/s Alfa Industries and M/s Anshita Trading Corporation (Hereinafter referred to as DTA Units). The customs officers made the investigation and found that the said material were plastic waste scrap classifiable under heading (CTH No.) 39151909 of the Customs Tariff Act, and restricted items in policy. A SCN dated 17.02.2005 was issued to DTA units, SEZ units the partners of the SEZ units. There is also allegation of undervaluation of the goods, By the impugned order the adjudicating authority confirmed the demand of duty alongwith interest and also imposed penalties. It is also confiscated the goods and imposed redemption fine for violation of the policy and mis declaration in terms of value and description of goods. 3. After hearing both the sides an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Institute of Plastic Engineering Technology (CIPET) with a view to having the same analyzed and verified that such imported consignment are in conformity with the description/definition as given in sub-para (i) and (ii) above. The guidelines being specific and unambiguous that the sample should be sent to the nearest laboratory or office of the CIPET , we hold that the appellant had no business to send the same sample to its own laboratory viz. Customs House Laboratory, Kandla, that too after obtaining the reports from CIPET, Ahmedabad. 44. We, therefore, hold that the competent authority of the customs departments cannot take any action against the writ petitioners on the basis of the report submitted by the Customs House Laboratory, Kandla though it has power to take such action, as permissible under the law, if any irregularity is found pursuant to the report submitted by the CIPET, Ahmedabad or the CIPET, Chennai. 7. We find that the Hon'ble High Court had given a clear direction to consider the report of the CIPET. In the present case, the adjudicating authority had not give any finding on the report of CIPET. In our considered view, the CIPET repo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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