1998 (7) TMI 362

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..... Prakash Transport, Calcutta. 2. The facts of the case are that on 20-2-1996, Shri Rajbir Sharma, Manager of M/s. Prakash Transport Co. filed a bill of export for allowing export of Mastic Flooring Compound. In the meantime, the Customs Officers received information that in the drums contraband goods were smuggled and that the drums were concealed under bales of cotton fabrics. On examination of the goods, 55 drums from one truck and 55 drums from another truck were found to contain Bitumen substance. As it was not possible to precisely determine the contents, sample was drawn and sent to Chemical Examiner, C.R.C.L., New Delhi for test. On 21-2-1996 and 22-2-1996 M/s. Prakash Transport Co. submitted a letter intimating that another....

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....on the observations that Mastic Flooring Compound was Bitumen Asphalt Paving Grade. He submitted that no evidence has been placed on record to prove that Mastic Flooring Compound and Bitumen Asphalt Paving Grade is one and the same thing. He submitted that the goods described by them as Mastic Flooring Compound and by the Chemical Examiner there was no misdeclaration as to the description of the goods. He submitted that the findings of the lower authorities had not disclosed as to how Mastic Flooring Compound and restricted item Bitumen (Asphalt) Paving Grade is one and the same. He submitted that only restricted item under Part (iv) para 161 of the relevant import and export policy which is restricted for export is Bitumen (Asphalt) Paving....

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....mpounds are the same as Bitumen (Asphalt) Paving Grade. We have seen the Chemical Examiner's report. The report indicates that such composition may find use as Bitumen Mastic Flooring Compounds, however, its actual use may be ascertained. We note that this report at no stage had indicated that the product is Bitumen (Asphalt) Paving Grade. Further, to find out the actual nature and use of the product, the Department was required to ascertain its actual use. No evidence was placed before us to show the actual use of the product. Looking to the facts and circumstances of the case, we note that the department has not been able to place on record any evidence to show that the confiscated goods were Bitumen (Asphalt) Paving Grade. We also note t....