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TMI Blog2025 (1) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate lab, i.e., M/s. Don Bosco, however, the present case is distinguishable as the testing had not been outsourced by M/s. Don Bosco and it has also not been proved by the appellant herein that M/s. Don Bosco was not fully equipped to carry out the testing of the samples. In the case of Sun N Sand, it was noted that on cross-examination of the technical expert from M/s. Don Bosco, the Commissioner (Appeals) had set aside the imposition of anti-dumping duty, whereas in the present case as noted by the original authority and as is evident from the absence of the appellant before the adjudicating authority, they have never sought for any cross-examination of the technical experts of M/s Don Bosco and in that view, the contention raised by the appellant that they have not been granted any opportunity of cross examination is unsustainable. Hence, the findings of the Tribunal in Sun N Sand are not applicable in the present case and no fault can be attributed to the test report. The fact cannot be ignored that as per the procedure for drawing the samples, one sample is given to the aggrieved party, i.e. the appellant herein and the appellant had an option to get the retesting done throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (JUDICIAL) AND HON BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) APPEARANCE : For the Appellant : Ms. Madhumita Singh, Advocate. For the Department: Shri Rakesh Kumar, Authorised Representative. BINU TAMTA: 1. The present appeal has been filed challenging the Order-in-Appeal No. CC(A)/CUSTOMS/D-II/IMP/ICD/TKD/1333/2021-22 dated 05.11.2021 whereby the Commissioner (Appeals) confirmed the confiscation, interest and penalty under the provisions of the Customs Act, 1962 [the Act] along with anti-dumping duty. FACTS: 2. Based on a specific intelligence regarding evasion of Anti-Dumping Duty by mis-declaration, the consignments imported by the Appellant vide Bills of Entry [BOE] No. 2935486 dated 15.10.2015 were examined by SIIB, TKD Import. The goods were declared as P.S. Printing Plates (Photosensitive Printing Plate) under CTH 84425010 imported from China. During examination on 03.11.2015, the goods were found to be 75000 pieces of Aluminum Printing Plates having one side blue in colour and other side natural aluminum colour. Representative samples were drawn on the spot for further investigations and sealed with Customs Seal. The impugned goods were assessed provisionally and allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of the same amount. In addition, penalty was imposed on the proprietor under section 114A of the Act. Being aggrieved, the appellant filed an appeal which has been dismissed by the impugned order. Hence the present appeal. 6. Heard Ms. Madhumita Singh, learned counsel for the appellant and Shri Rakesh Kumar, learned authorized Representative for the Department, and perused the record of the case. 7. Ms. Madhumita Singh, the learned counsel for the appellant has reiterated the arguments as taken before the Commissioner (Appeals). She submitted that the Shelf life of P.S. Plates for offset printing is 18 months and the samples of the goods in question were sent for testing to the lab on 20.02.2017 vide testing memo 982 after a period of one year three months and seventeen days. Elaborating her submissions, she argued that the relevant invoice is dated 18.04.2015, which implies that the plates were manufactured much before the said date and the test report is dated 30.03.2017 by which time the shelf life of 18 months of the plates had expired. The testing of the expired goods does not reflect the authenticate characteristics on testing the same. The learned counsel for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings of this Tribunal in the later decision in Sun N Sand, where test report was held to be not reliable as the lab was lacking proper infrastructure for CTCP machine testing and, therefore, outsourced it for testing. The facts of the present case are not identical to the case of Sun N Sand in so far as the authenticity of the test report is concerned. Though in both the cases, the Government labs had refused to conduct the test due to non-availability of the infrastructure and the testing was forwarded to the private lab, i.e., M/s. Don Bosco, however, the present case is distinguishable as the testing had not been outsourced by M/s. Don Bosco and it has also not been proved by the appellant herein that M/s. Don Bosco was not fully equipped to carry out the testing of the samples. In the case of Sun N Sand (supra), it was noted that on cross-examination of the technical expert from M/s. Don Bosco, the Commissioner (Appeals) had set aside the imposition of anti-dumping duty, whereas in the present case as noted by the original authority and as is evident from the absence of the appellant before the adjudicating authority, they have never sought for any cross-examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority rightly observed that it is for the testing agency to decide and adopt the suitable method for the purpose of testing. Confirming the said view, we are of the opinion that the appellant cannot dictate the terms to the testing agency or the Department to have the test conducted by adopting a particular method as per their choice. 14. On the issue, that the test was conducted after the expiry period of 18 months and therefore, the test report cannot be relied upon has been rightly rejected by the adjudicating authority as the testing agency has no way stated in the test report that the shelf life of the Plates had expired. Nor the appellant had produced any evidence from the supplier about the shelf life of the plates. Considering that the invoice of the goods is dated 18.04.2015 and hence they could have been manufactured sometime before the said date, the samples drawn from the consignment on 03.11.2015 were initially forwarded to the Government lab on 19.11.2015 but due to the unforeseen circumstances, the samples were finally sent on 14.12.2017 and soon, thereafter, the test report was made on 30.03.2017. According to the appellant, the samples sent on 20.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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