TaxTMI 
TaxTMI 
2009 (8) TMI 999
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....Director General of Foreign Trade under 'Duty Free Import Authorization' scheme (DFIA in short). They submitted Shipping Bill No. 077/DFIA dated 11-4-2007 under Section 50 of the Customs Act 1962 under shipping bill and Bill of Export (Form) Regulations 1991 requesting to allow export of 100096.25 square feet of finished leather valued at Rs. 41,49,475/-. As per provisions, the respondent submitted CLRI certificate No. 1015 dated 24-11-06. Since the consignment was first under the DFIA scheme, it was deemed essential to draw the sample to ascertain as to whether the goods declared as 'finished leather' were actually 'finished leather manufactured out of hides of buffalo' or not. Accordingly, Sample No. 267-T/07 (for test) & 304-R/07 (for record) were drawn out of the goods relating to Shipping Bill No. 077/DFIA dated 11-4-07 and Sample No. 267-T/Exp./07 was sent to Regional Centre for extension and development (Central Leather Research Institute, Chennai) Kanpur (herein after referred as CLRI) for testing on Test form No. 267/T/Exp./07 dated 13-4-07 vide C.No. VIII (6) /ICD/JRY/Cus/KNP/63/2000 dated 13-4-07 and the assessment was made provisional pending test of sample by the prope....
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....t @ 15% leviable thereon under Section 28AB of the Customs Act 1962 read with Notification No. 26/2002-Cus. (N.T.), dated 13-5-2002. 7. The respondent submitted detailed reply in respect of allegations made in the show cause notice but the adjudicating authority after examining the entire issue confirmed the demand alongwith interest pertaining to finished leather of Beige colour in respect of which the sample was drawn and sent for test, which later on was confirmed by the CLRI as to be "not a finished leather as per norms". The demand of duty in respect of balance quantity of leather of different colour covered by the Shipping Bill No. 77-DIFA and the entire quantity of leather of black colour covered by the Shipping Bill No. 82-DFIA for which no sample were drawn and sent for testing. 8. Being aggrieved with the impugned order, the appellant has filed the instant appeal on following grounds : • That the consignment declared on the Shipping Bill No. 77/DFIA dated 11-4-2007 was a single lot of single quantity written on the face of the shipping bill as "FINISHED LEATHER FROM HIDES OF BOFALLO/BUFF NUBUCK SUBSTANCE : 1.4/1.6 MM/COLOUR : BEIGE, WHISKY, RED, BLACK".....
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.... That the Respondent submits that the portion of the Adjudication order pertaining to Beige Colour Leather being unfinished was challenged before this Hon'ble Chair's office in Appeal No. 79-CUS/APPL/KNP/2009 and this Hon'ble Chair has already set aside part of the Adjudication Order, which was adversely effecting the Respondent pertaining to Beige Colour Finished Leather. Principle of res judicata shall apply and Order-in-Appeal No. 64-CUS/APPL/KNP/2009 being binding upon the Revenue automatically makes the present Appeal infructuous and void ab initio and deserves to be rejected on this ground alone; • That the entire Show Cause Notice is time barred and for the entire Show Cause Notice the Hon'ble Chair has observed as follows : - "The appellant at the time of personal hearing submitted that the demand was also time barred as the Show Cause Notice under Section 28 of the Customs Act, 1962 without invoking the provisions of extended period, for recovery of export duty was issued on 28-3-2008 i.e. after more than six months from the date of export, which is the relevant date in this case in terms of Sub-section (3) (a) of the said section 28 as the provisional ass....
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....d counted 10 pallets said to contain finished leather from hide of Buffalo Nubuck. Opened and examined Pallet No. 1495 & 1502 and founds the goods in order as per S/B Invoice. P/L, CLRI Sample No. 1015 dated 24-11-2006. The pre-tested CLRI Report No. ASSMT/KCED/1015 dated 24-11-06 inter alia reads as under : "The Committee has assessed the above mention sample of leather in light of Public Notice No. 3 ETC(PN/92-97 dated 25-05-92 and certifies that the leather referred to above SATISFIES the norms and condition laid down in the aforesaid order for the type of finished leather as declared i.e. Buffalo Coloured Nubuck Shoe Upper Leather (vi-1-L)." Further I observe that vide Shipping Bill No. 82-DFIA, the Party exported 'finished leather from hide of Buffalo' - Buff Nubuck of Black Colour only. The examination report of said Shipping Bill No. 82-DFIA reads as under : - "Inspected and counted 200 bales said to contain finished leather from hides of Buffalo. Opened and examined bale No. 1512, 1532, 1616, 1593, 1665, 1588, 1556 and found the goods in order as per S/B, Invoice, P/L & CLRI Sample No. 1314 & 1315 dated. 12-4-2007....." The pre-tested CLRI report in respect o....
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....icer of customs lower in rank than a Commissioner of Customs may Appeal to the Commissioner (Appeals) within Sixty days from the date of communication to him of such decision or order. The present Appeal has been filed beyond the period of sixty days and as such the Appeal itself filed by the Revenue is beyond the period of limitation and liable to be struck down on this ground alone. 10. Personal hearing in the case was fixed for 16/17-7-2009, which was communicated to the appellant and the respondent. The copy of cross objections was also sent to the appellant for information and offering comments, if any. In response, Shri Amit Awasthi, advocate and the counsel of the respondent appeared on 17-7-2009. He reiterated the submissions made in the cross objections and also submitted that the order of the adjudicating authority was legal and proper and was passed after examining the evidences on records in the form of Pre Test Reports of CLRI and examination reports of the Customs officers who examined the goods physically and have confirmed that the goods were finished leather. The said fact has also been confirmed by the buyer in his certificate that the goods were finished leath....
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....orrect. Thus, the party mis-declared the goods as Finished Leather; which on testing were found to be not finished with intent to evade payment of duty and accordingly, a show cause notice clearly bringing out the fact of the mis-declaration was issued under the provisions of Customs Act, 1962, so as to recover the export duty by denying the benefit of exemption notification No. 133/2000 dated 17-10-2000 which is available only for finished leather; • That the consignment declared on Shipping Bill No. 077/DFIA dated 11-4-2007 was a single lot of a single quantity written on the face of shipping Bill as "Finished Leather From Hides of Buffalo/Buff Nubuck Substance "1.4/1.6MM/Colour beige, Whisky, Red, Black" The quantity of export goods was also written as a whole i.e. 100096.25 SQFT and net weight 9541 Kgs. The FOB value was also written to be as a whole i.e. INR 4149475.00. The export product was no where differentiated on the face of the shipping bill submitted by the exporter into parts to be different quality, weight or value as per their colours. The subsequent Shipping Bill No. 82/DFIA dated 17-4-2007 was also carrying the particulars of the export product in the....
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....bjections filed by respondent and the comments of the appellant on the cross objections. This is an appeal filed by the department against order of the Assistant Commissioner of Customs, ICD, JRY, Kanpur under Section 129D(4) of the Customs Act, 1962 under proper authorization given by the Commissioner of Customs & Central Excise, Kanpur, which is enclosed with the appeal. I notice that in the cross objections, the respondent have claimed that the appeal was time barred and also that the proper authorization was not filed and on this plea they have requested to reject the appeal. After going through the appeal papers, I do not find any force in the submissions because the appeal was filed in terms of Section 129D(4) of the Act ibid, on proper authorization by the Commissioner. I also find that the appeal was filed with in the period prescribed in Section 129D, thus the said contention of the respondent is away from fact and merits rejection. I therefore take-up the appeal on merits. 12. The facts of the case as described in the proceeding paragraphs show that the entire issue revolves around the report given by the CLRI in respect of representative sample of beige coloured leath....