TaxTMI 
TaxTMI 
2010 (10) TMI 330
X X X X Extracts X X X X
X X X X Extracts X X X X
....stay application No. C/S/564/09, the prayer is to grant waiver and stay in respect of fine and penalty. A perusal of the records indicate that the appellant imported goods declared as 'rough marble blocks', from Hong Kong and claimed clearance of the goods under an advance licence by filing five bills of entry on 9-3-1999. A sample of the goods was sent to M/s. Geo-Chem Laboratories (P) Ltd., Mumbai and their report was in favour of the importer. Subsequently, samples were drawn and sent to a laboratory of Geological Survey of India (Nagpur), whose report was against the importer. The GSI Lab found the goods to be "limestone". Acting upon the GSI report, the department issued a show-cause notice dated 29-1-2001 under Section 124 of the Cust....
X X X X Extracts X X X X
X X X X Extracts X X X X
....porter, the learned Commissioner passed orders in adjudication of those notices, these orders were partly against the importer and partly against the Revenue, appeals were filed by both sides before this Tribunal; and those appeals were allowed by way of remand. There was one more round of remand and the present appeal No. C/1273/08 of the assessee is against the order passed by the Commissioner pursuant to the second remand order. In this case, neither the show-cause notice nor the Commissioner's order demanded any duty. The challenge of the assessee is against the confiscation, redemption fine and penalty. 3. After hearing both sides, we note that the appellant has challenged the Commissioner's orders on numerous grounds. The majo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion, the learned counsel has also claimed support from an Explanatory Note under HSN Heading 25.15, which reads thus: "Marble is a hard calcareous stone, homogeneous and fine-grained, often crystalline and either opaque or translucent ............." Referring to the expression "often" used in the above Explanatory Note, the counsel submits that there can be samples of marble without crystalline structure, as in limestone. Therefore, according to the counsel, the GSI Lab test report, which did not take into account the crystalline characteristics of limestone and marble, is not reliable. It is submitted that the imported material was correctly declared as 'marble' and the same was disposed of in the domestic market as 'marble'. As a matter o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se decisions, prima facie, support the appellant's plea for classification of the imported commodity as 'marble'. We have also found favour with the plea of limitation raised by the counsel against the demand of Customs duty. It is not in dispute that the so-called "amended show-cause notice" dated 5-12-2001 was issued for demanding Customs duty besides confiscating the goods and imposing penalty. It is also not in dispute that this show-cause notice did not refer to the earlier show-cause notice which was issued in January 2001. Prima facie, the show cause notice dated 5-12-2001 was an independent show cause notice and, in such scenario, the facts pleaded/alleged in the earlier show-cause notice dated 29-1-2001 should be considered to have....