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TMI Blog2024 (10) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... e ash content is absolutely irrelevant for the above entry, it is held that the ash content was unnecessarily discussed in those reports, despite that mechanical wood pulp is the criteria for classification of paper under Chapter 48.02. The test report of Saharanpur, despite it is reporting mechanical wood pulp be more than 70% was wrongly made the basis of denying the imported goods to be printing paper. It is also observed that even the detention certificates of the period August, 1997 to December 1997 specifically mentions that the importer was not found at fault. Above all the test bonds as were furnished by the assessee-respondent were all cancelled by the department while releasing the goods/printing paper of CTH 4802.60 - even the detention certificates of the period August, 1997 to December 1997 specifically mentions that the importer was not found at fault - all the test bonds as were furnished by the assessee-respondent were all cancelled by the department while releasing the goods/printing paper of CTH 4802.60. There is no proof/bagger with the department to get the samples tested from the Lab at Saharanpur. There is also no proof as to which samples were sent to Saharan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at M/s. Navshakti Industries Pvt. Ltd., New Delhi has been mis-declaring the goods of import with a view to avail ineligible exemption benefit of Notification No. 11/97-Cus dated 01.03.1997, entry on S.No. 78. The officers from SIIB Brach of ICD TKD, Commissionerate acted upon the said intelligence and found that M/s. Navshakti Industreis Pvt. Ltd. had imported 26 consignments vide following 26 numbers of Bills of Entry Declaring the goods as printing paper, uncoated in reels having not less than 70% mechanical wood pulp by weight of total fiber content. : S.No. Bill of Entry No. Date 1 108100 02.08.1997 2 109316 29.08.1997 3 109517 19.09.1997 4 10958 04.09.1997 5 110452 19.09.1997 6 110474 20.09.1997 7 111345 08.10.1997 8 111361 09.10.1997 9 112300 31.10.1997 10 112781 11.11.1997 11 113110 17.11.1997 12 113348 20.11.1997 13 113349 20.11.1997 14 113699 27.11.1997 15 114160 03.12.1997 16 114182 28.08.1997 17 114260 08.12.1997 18 114270 08.12.1997 19 114380 10.12.1997 20 113341 20.11.1997 21 107739 25.07.1997 22 107940 30.07.1997 23 108391 11.08.1997 24 108602 14.08.1997 25 108603 14.08.1997 26 111740 18.10.1997 1.2 The goods were classified under Customs Tariff Heading No. 4802.60 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plier as well as the intendors were also recorded. Meanwhile the test report for remaining 25 Bills of Entry was received from CISL, Saharanpur vide letter dated 11.09.1998 reporting that the samples in respect of all the above 26 Bills of Entry confirmed to the parameters of newsprint as provided in note 3 of Chapter 48 of the Customs Tariff Act, 1975. 1.5 Based thereupon, department formed an opinion that the goods imported vide 26 Bills of Entry were Newsprint (restricted goods which were allowed to be imported only under a specific importer license). Hence, vide Show Cause Notice No. 02/97 dated 23.07.2002 respondent, M/s. Navshakti Industries Pvt. Ltd. has been alleged to have imported the newsprint by mis-declaring the same as printing paper by paying nil rate of duty as contrary to customs duty at the rate of 10% Basic Customs Duty (BCD), thereby evading the customs differential duty amounting to Rs.31,77,162/-. The said amount of duty was accordingly proposed to be recovered along with the interest. The goods imported vide Bills of Entry were proposed to be seized and penalties were proposed to be imposed on the respondent, M/s. Navshakti Industries Pvt. Ltd, their financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce extended period in terms of Section 28(4) of the Customs Act, 1962 (herein after referred as the Act) has rightly been invoked in the facts of the present case, while issuing the impugned show cause notice. 3.2 It is further impressed upon that the impugned 26 Bills of Entry, the assessment thereof was never finalized. There is no evidence to the said effect except that the Commissioner of Customs has relied upon rejected test bonds which cannot be called as the proof of final assessment. Not only this, the adjudicating authority below has relied upon the test reports of CRCL, Pusa, Delhi which were submitted by the respondent-importer and have not even been mentioned in the impugned show cause notice. The findings in the order under challenge are therefore beyond the scope of show cause notice, hence are liable to be set aside. The test reports of CRCL, Saharanpur based whereupon the show cause notie has been issued have not been discussed in the order under challenge which amount to deciding the matter ex-parte i.e. without relying upon the submissions made by the department. The order therefore gets hit by the violation of principle of natural justice as well and is liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-importer has mentioned that the impugned show cause notice was issued after the delay of more than 4 years since the date when consignments of the importer-respondent were intercepted in the month of August to October 1997. However, the show cause notice has been issued in the Year 2002. The department has not produced anything to justify said delay nor has produced any document on record to prove the allegations of mis-declaration. There is nothing on record to prove as to which samples were sent to M/s. CRCL, Saharanpur. No notice of drawing those samples was served upon the importer-respondent, nor the date of those being sent and tested by Saharanpur Lab was informed to the appellants. On the contrary, the goods of 26 Bills of Entry were initially detained for test check. The sample from each of the consignment were drawn sealed in presence of the respondent s representatives and were sent to testing to CRCL, Pusa, Delhi. 80% of the detained goods were provisionally released at that time of submitting those test bonds. Based on the reports received from CRCL, Pusa that the Sample do not confirm to the standards of Newsprint that the test bonds, as were furnished by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent-importer though paid the demurrage charges however claimed the same by filing the suit for recovery before Hon ble High Court of Delhi. The said suit was decreed in favour of the respondent-importer in March, 2002 holding department liable for paying those demurrage charges. The present show cause notice of July 2002 is an afterthought to wrongly avoid the compliance, the decreed passed by the Hon ble High Court. Otherwise also department has not filed any document of any nature to support the findings in review order dated 26.03.2014, except the CRCL Saharanpur report which is not acceptable for want of due process of law as was required for obtaining those test reports. Adjudicating authority below has rightly observed that prior the report of CRCL Saharanpur, test reports of CRCL Pusa supporting the importers declaration was already there holding that the subject goods are Printing Paper . Based whereupon the goods were finally assessed and got finally released. The complete silence of those facts in the impugned show cause notice is noticed as a strong ground to reject the show cause notice and to drop the demand arising there from. Top on that department itself remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be upheld and the appeal filed by the department is prayed to be dismissed. 5. Having heard both the sides at length, perusing the voluminous record and the voluminous written submission submitted by both the parties, we observe following to be the apparent facts, the bone of contention: (a) The impugned Order-in-Original dated 24.12.2013 as has been challenged by the department subsequent to the Review Order dated 26.03.2014 is an order passed in favour of the importer falsifying the allegations of mis-declaration and holding that the goods imported by the importer-respondent were the Printing Papers . Based on the reports by CRCL, Pusa, Delhi reports, it has been held that the respondent importer has rightly availed the exemption benefit of Entry No. 78 of Notification No. 11/97-Cus. (b) We also observe that the impugned show cause notice dated 23.07.2002 has been served upon the importer alleging misdeclaration on the basis that the imported goods are the Newsprint paper as got confirmed by the report given by CRCL, Saharanpur. As per department the samples of all 26 Bills of Entry were drawn and were sent to Saharanpuer Lab along with the letter 09.02.1998 and 20.02.1998. 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal pursuant to the said review Order dated 24.12.2013. 12. 23.02.2017 Final Order was passed by the Hon ble Tribunal Delhi wherein the matter was again remanded to the Adjudicating authority, observing that goods have not been finally assessed. 12(a) 30/31.05.2017 An application was moved by the Appellant/Petitioner herein under Section 129(B)(2) for Rectification of mistake against the above said final order dated 23.02.2017 but was dismissed as barred by time. 13. 19.09.2017 Customs appeal was filed by the Respondent before the Hon ble High Court Delhi challenging said order of remand. 14. 05.12.2017 The Hon ble High Court Delhi dismissed the appeal of the Respondent on the ground of jurisdiction as the appeal was not maintainable. 15. 08.10.2018 The Respondent-importer moved the Hon ble Supreme Court of India against the Order of the Hon ble Tribunal Delhi dated 23.02.2017. 16. 22.08.2023 Hon ble Apex Court remanded the matter back to the Honble Tribunal with permission to both the parties to submit additional documents. Pursuant to said order, the matter is again before this Tribunal. 5.2 After going through the said chronology as apparent on record, and has been observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of such alleged tests and test reports. Hence, the demand is time barred. Entire series of actions by officers by denying them the relevant records including test reports of CRCL, Delhi, on one pretext or the other holding that the same are not relevant or are not traceable and finally pass the order, without properly hearing the noticee shows malafide. Re-opening the finalized assessment on the basis of some alleged test reports is against the well settled position of law. 33. A perusal of the case records show that 26 consignments of papers were imported during August Dec., 1997. The representative samples were drawn from 26 consignments and sent for testing. As per show cause notice, the samples were sent to Central Pulp Paper Research Institute, Saharanpur vide office letters Ref. C. No. VIII(ICD)6/16/270/97/Imp/1654 dated 9.2.198 and even No. 2049 dated 20.2.1998. However, as per noticee, the representative samples were sent to CRCL, Delhi. Hence, there is variation in facts and show cause notice does not mention that the samples were sent to CRCL, New Delhi, for testing and test reports were received by them. This important fact has been completely blacked out from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shows that test reports from the Customs Chemical Laboratory confirmed that the paper consignments were of printing paper. The allegation is that those reports were being suppressed. It is being pointed out that the appellant has specifically sought copies of those test reports from the customs authorities during adjudication but the request was rejected under letter dated 18.01.2006 stating that CRCL reports are not available in the case record and also do not appear to the relied documents in the SCN . The allegation of the learned counsel is that revenue is trying to keep evidence favourable to the appellant out of the proceedings, so that demand could be confirmed. 5.6 In view of said submissions this Tribunal vide order dated 12.01.2007 held that it is a fit case for granting waiver of pre-deposits. Firstly, because the same dispute had arisen between the parties before the Hon ble High court and the decree made is binding on both parties. Secondly, the record shows that their provisional assessments were finalized, apparently, based on tests by Customs Laboratory. If that was the case, there is no justification for invoking the extended period, merely because another report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to both parties to produce additional documents, if any. (The chronology of these orders is already tabulated above) 5.9 The subject of the said review order is, Review of Order-in- Original No.68/RKB/CCE/NCH/2013 dated 26.12.2013 . It is stated that Section 129(D) does not provide any power to review the order and in fact, the Committee of Chief Commissioners of Customs have gravely erred in passing the order dated 26.03.2014 bearing No. 01/2014 in the nature of review. The said order could only be in the nature or recommendation after satisfying to the legality or propriety of such decision. Neither the department has filed in the Appeal any record, which has been considered by the Committee of Chief Commissioner s of Customs, Delhi Zone. Para 4 of the order dated 23.02.2017of the Tribunal does not even indicate anything regarding the same or shed any light that what was looked into by the Committee of Chief Commissioners of Customs while using their powers under Section 129(D). The sequence of events clearly indicates that even the applicant did not get an opportunity to explain the case. This is one of those cases which required dismissal and not remand as has been done. 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d such documents, and in the absence of any other document to falsify the test reports from CRCL, Pusa, Delhi, and further, in absence of any documents proving that the department had followed the due procedure for drawing samples, subsequently, to be sent to CPPRI, Saharanpur, we do not find any infirmity in the order under challenge. 5.12 Coming to the another contention of learned Departmental Representative where emphasis has been laid upon the ash content as the criteria for describing the nature of imported goods as has been appreciated by CPPRI, Saharanpur, we observe that the appellant has availed the exemption benefit of Entry on Serial No. 78 of Notification No. 11/1997. It reads as follows: S.No.76. Heading Newsprint, having an ash content by weight not exceeding 8% S.No. 77. Heading 4801 Newsprint, having an ash content by weight exceeding 8% S.No. 78. 4802. Paper (excluding chrome paper, marble paper, flint paper, poster Paper, stereo paper and art paper) containing mechanical wood pulp amounting to not less than 70 per cent. By weight of the total fiber content. 5.13 The perusal of above quoted entry reveals that the content of mechanical wood pulp was the only criter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 were all released by January, 1998 based on the test reports from CRCL, Pusa holding the imported goods to be the printing paper. Apparently the samples to CPPRL, Saharanpur were sent in Feburary, 98 vide letters of the Assistant Commissioner (Prev.) bearing no. 1654 dated 09.02.98 and another bearing no. 2049 dated 20.02.98. Though department acted on those Test Reports and released all consignments of respondent-importer in January 1998 itself. To our opinion there is no proof/bagger with the department to get the samples tested from the Lab at Saharanpur. There is also no proof as to which samples were sent to Saharanpur, and the reason to doubt the report of CRCL, Pusa, which is the department s own laboratory. No additional document is produced by the department to justify the subsequent drawing of samples, if any, that too at the back of importer. There is no additional document produced by the department which may falsify their own documents which had come in existence prior to sending the samples to CPPRI, Saharanpur. This is sufficient for us to hold that CPPRI, Saharanpur Report is an afterthought, which has no basis. The report cannot be relied also for the reason tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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