TaxTMI 
TaxTMI 
2011 (5) TMI 144
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....stoms, Excise and Service Tax, Appellate Tribunal, East Regional Bench, Kolkata, in Appeal No.157 of 2009 by which the said Tribunal set aside the order of Commissioner of Customs of Confiscation and penalty. Being dissatisfied, the Commissioner of Customs has come up with the present appeal. A Division Bench of this Court at the time of admission of this appeal formulated the following substantial question of law: "Whether the learned Tribunal erred in law in not considering the Test Report though admittedly submitted before it while passing the impugned judgment and order?" The facts giving rise to filing of this appeal may be summed up thus: a) M/s. Heera Sales Corporation, the respondent before us, filed an appeal....
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.... consequently, the order of confiscation of the goods were passed. So far the respondent is concerned, they appeared before the Commissioner of Customs (Preventive) and produced documents in support of their claim that 240 rolls of Mapasa Brand fabric were owned by them as would appear from 34 purchase bills/invoices showing ownership in respect of 20 consignments. They further claimed that they procured the goods from M/s. Global Overseas and Mapasa Tapes Pvt. Ltd. against genuine consignment notes for transportation to Kolkata. They also expressed their doubts of variances of thickness between test report and bills of entry. f) Being dissatisfied with the order of confiscation and imposition of penalty, the respondent preferred ....
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.... Roychowdhury, the learned senior counsel appearing on behalf of the appellant, by relying upon the notification under Sections 123 of the Customs Act submitted before us that as per the said notification, fabrics made wholly or mainly of synthetic yarn is a notified item and thus, the Tribunal below wrongly placed the onus upon the Revenue. Mr. Roychowdhury submitted that the description of goods mentioned in those invoices did not tally with the testing report of the Customs Authority in respect of seized goods and thus, the Tribunal below should have held that those invoices did not relate to the seized goods. Mr. Roychowdhury, therefore, prayed for setting aside the order passed by the Tribunal. Mr. Khaitan, the learned counse....
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....s of the bill of entry has not been disputed by the Revenue. It has further been established that the respondent is the owner of the goods as would appear from the documents of transportation itself from the purchasers. Thus, on the basis of the variation of 0.03 mm of thickness appearing from the test report which did not disclose the exact thickness but an average one, there was no justification of confiscation of the goods when the bill of entry and the documents of purchase substantially tallies with each other and the facts that those were brought to Kolkata at the instance of the Respondent through the Transporter from whose custody the goods were seized has been proved. The Customs authority in its report having failed to g....