2019 (2) TMI 344 - AT - Customs

Tribunal halts bank guarantee encashment, stresses fair testing & evidence, examines imported goods classification

M/s Tpl Plastech Ltd, Time Technoplast Ltd. Versus C.C. - Kandla

The Tribunal stayed the encashment of the bank guarantee provided by M/s TPL Plastech Ltd. until the final disposal of the appeal, emphasizing the ... Stay on recovery - Encashment of Bank Guarantee - Import of High Density Polyethylene (HDPE) - addition of carbon black - Benefit of exemption under N/N. 21/2002-Cus dated 01.03.2002 Serial No 477 and 559 and N/N. 12/2012-Cus dated 17.03.2012 serial No. 236 and 237 - Import of - eligibility of compounded HDPE - High Density Polyethylene or not? - Held that:- The issue is decided in the case of Ratnamani Metal & Tubes Limited vs. CC, Kandla [2013 (8) TMI 851 - CESTAT AHMEDABAD], where it was held that In the absence of any support for the conclusion that the product imported by the appellant has been chemically modified or it is not known as HDPE in the market, the benefit of exemption under Sr. No. 477 has to be extended to the appellant - the said case is squarely applicable to the facts of the present case. Thus, at this stage encashment of bank guarantee would not be justified - the encashment of bank guarantee is stayed till final disposal of the appeal filed by the applicant. Issues Involved:1. Encashment of bank guarantee.2. Eligibility for exemption under Notification No. 21/2002-Cus and Notification No. 12/2012-Cus.3. Classification of imported goods as High-Density Polyethylene (HDPE).4. Validity of chemical test reports and their influence on the case.Issue-wise Detailed Analysis:1. Encashment of Bank Guarantee:The appellant, M/s TPL Plastech Ltd., filed a stay application to prevent the Customs authorities from encashing the bank guarantee provided for the release of imported goods, which were later confiscated, and a redemption fine was imposed. The Tribunal had earlier refused to interfere in the encashment of the bank guarantee, stating that deposits under Section 129E of the Customs Act, 1962, do not automatically stay recovery of other dues. However, the Tribunal acknowledged its power to stay recovery proceedings.2. Eligibility for Exemption under Notification No. 21/2002-Cus and Notification No. 12/2012-Cus:The appellant claimed that the imported goods, declared as HDPE Marlex HHM-3802, HDPE Marlex HHM-TR-571, and HDPE Marlex HHM-TR-144, were eligible for exemption under the specified notifications. The key issue was whether these goods qualified as HDPE under the exemption criteria. The notifications provided concessional rates for specific polymers of ethylene, including HDPE.3. Classification of Imported Goods as High-Density Polyethylene (HDPE):The Chemical Examiner's report indicated that the imported goods were composed of polyethylene modified with hexane, with specific gravity more than 0.94, and having extra high molecular weight. The Director of CRCL confirmed that the samples were copolymers of ethylene and hexene, not pure HDPE. The appellant contested this classification, arguing that the presence of hexane as a co-monomer in the manufacturing process did not alter the classification as HDPE.4. Validity of Chemical Test Reports and Their Influence on the Case:The appellant argued that the chemical test reports were based on technical literature and specifications without actual chemical analysis. They contended that the reports were influenced by the opinion of the Superintendent (SIIB) Customs, Kandla, who had doubts about the importers claiming concessional duty rates for chemically modified/compounded HDPE. The appellant sought detailed information under RTI, which was denied, leading to questions about the transparency and accuracy of the test reports.Tribunal's Findings and Decision:The Tribunal reviewed previous cases, such as Ratnamani Metal & Tubes Limited vs. CC, Kandla, and PSL Limited vs. CC, which dealt with similar issues of chemically modified HDPE and the application of concessional duty rates. The Tribunal found that the lower authorities had not adequately considered whether the imported goods were chemically modified or known as HDPE in the market. The Tribunal noted that the test reports relied on by the Revenue were not fully comprehensive and lacked support from government laboratory tests.Conclusion:The Tribunal held that encashment of the bank guarantee would not be justified at this stage and stayed the encashment until the final disposal of the appeal. The decision emphasized the need for a thorough examination of the classification and eligibility for exemption of the imported goods under the relevant notifications. The Tribunal's order highlighted the importance of fair and transparent testing procedures and the necessity of considering all relevant evidence in such cases.(Pronounced in the open court on 02.01.2019)