TaxTMI 
TaxTMI 
2010 (12) TMI 336
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....ade graphite/carbon having a purity level better than 5 parts per million (ppm) Boron equivalent and with a density greater than 1.5 gram/cc in quantities exceeding 30 MTs in any period of 12 months" was not permitted by the EXIM Policy to be exported without specific licence issued by the competent authority, viz. Department of Atomic Energy, (DAE), Government of India. Other grades of graphite/carbon were freely exportable. In the present case, the customs authorities apprehended misdeclaration of the goods to get over licensing provisions and, therefore, subjected both the consignments to examination in the presence of the exporter's CHA. Representative samples were drawn in the presence of representatives of the company and forwarded to....
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.... 5.340 MTs of the prescribed substance viz : unmachined graphite rods and blocks of various sizes and dimensions as given in Annexure-II, to a Thai company for the same use. Without prejudice to their claim for free exportation of the goods, the appellant produced the above licences with the alternative request for permission to export the goods to the Swedish and Thai companies. The adjudicating authority, after rejecting the request for export of the goods under the aforesaid licences, ordered confiscation of the goods under Section 113(d) of the Customs Act on the ground that no valid export licence was produced for the export of the nuclear grade graphite/carbon. A fine of Rs. 3.6 lakhs was also determined by the Commissioner unde....
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....aphite/carbon was 'ASTM-C-781-08' and that solution standards were available with M/s. E. Merck, India. It is submitted that the appellant also approached BARC for a clarification of their test results which were relied on by the customs authorities. The BARC, thereupon, held discussions in a group of scientists and formulated a method for analysis of graphite. Counsel submits that this method (Autoclave Leaching Method) was made available to the IIT who conducted experiments by following the guidelines issued by BARC and reported net boron contained in graphite samples to be 26.56 ppm. The test report of IIT, dated 20-11-2008, is available on record. An anonymous letter dated 22-11-2008 addressed to Professor Lahiri of the IIT listing out ....
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....learned counsel, at this stage, submits that the goods are not available in the form it was presented to the customs authorities. This would mean that the licences of DAE produced by them are of no use. The grounds raised in this appeal on the strength of these licences are infructuous. 7. In this scenario, one has got to fall back upon the question whether the confiscation ordered by the Commissioner is legally correct or not? I have already found that the BARC's test report indicating the Boron concentration in the test samples of the goods to be below 5 ppm, is authentic and its evidentiary value cannot be discounted in the manner sought to be done by the appellant. The goods were presented for exportation without valid licence and....