TaxTMI 
TaxTMI 
2003 (12) TMI 379
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppeal filed by M/s. Falcon Marine Exports Ltd., challenging the order of Commissioner of Customs, Visakhapatnam. In both these appeals, the appellants are exporters who filed shipping bills for exporting shrimps. M/s. Surya Udyog in the shipping bill described the product as processed, preserved and frozen headless shrimps of species white shrimp (cultured) Surya brand and M/s. Falcon described the produced as processed, preserved and frozen headless shrimps of species black tiger shrimps (penaeus monodon) (cultured), Indian origin, fresh, frozen, headless shell on white (cultured) and black tiger (cultured) shrimps "typee" and "nice" brands. During examination of the goods of M/s. Falcon, it was found that out of 650 cartons of the goods, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bject to visual identification only by Export Inspection Agency, Chennai and their report clearly says that samples appear to be sea white. However, the Export Inspection Agency opined that complete identification of the species is possible only in the head on - shell on - tail on shrimps. The shrimps exported in the instant case were headless, therefore, identification report of Export Inspection Agency, Chennai automatically becomes irrelevant to conclusively establish that the impugned shrimps were sourced from the sea. They had produced certificate of MPEDA, Bhubaneswar before the identification report of Export Inspection Agency at Chennai. This report was brushed aside by the adjudicating authority as 'not at all satisfactory explanat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be, cannot take the place of legal proof. He relied on a decision of Tribunal in case of CCE v. Jayant Oil Mills [1999 (113) E.L.T. 1025 (Tri.)] and pleaded that an exporter cannot be penalised on the basis of mere suspicion. It was also pleaded that personal opinion of the adjudicating authority cannot be basis of a decision in the course of adjudication of a case and relied on this Tribunal's decision in the case of Liberty Shoes Ltd. v. CCE, New Delhi [1999 (105) E.L.T. 422]. He also relied on the clarification given by Director General of Foreign Trade vide letter No. 01/86/40/ 1541/AM98/DES-V/14/1359, dated 18-6-1998 in reply to the query of the respondents on the subject which states :- "......possibility of such varieties (i.e. B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al phenomenon. The declaration in the shipping bill that export goods were cultured shrimps, is as a matter of fact based on the knowledge of the appellants and there is no mis-declaration in it. 4. Heard Smt. Radha Arun, ld. SDR. 5. We have carefully considered the submissions made by both sides. We find that the main issue to be decided in these appeals is whether the impugned consignments of the shrimps being exported by both the appellants were cultured shrimps or the shrimps obtained from sea. 6. We find that the Commissioner in his order has stated that the exporter had given certain markings on the cartons and he interpreted these marking as SW as Sea White shrimps, WC containing mixture of sea white and cultu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....species appears to be of sea white as well as culture white. The scientific name of the species is 'Penaeus Indicus'. The panel was of firm opinion that the complete identification of the species is possible only in the head on - shell on - tail on shrimps." 8. We find that the adjudicating authority has taken a decision on the basis of part of the report of Export Inspection Agency. He has not taken into consideration the clarification given that firm opinion can only be given in the head on - shell on - tail on shrimps. Therefore, reliance on their partial opinion taken into consideration cannot lead to a definite conclusion. It can be only a suspicion that the disputed shrimps are sea white shrimps. The suspicion, however grav....