TaxTMI 
TaxTMI 
2013 (4) TMI 511
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....of Customs, Kandla. 2. Appellant No. 1 filed three shipping bills as detailed in Para 2 of the adjudication order dated 25.5.2012, declaring the goods as Indian Basmati Parboiled Rice. Representative samples of the consignments were drawn by the Customs authority, Mundra and sent to Agmark Laboratory for testing. The test result opined the goods to be Parboiled Basmati Rice Pusa 1121 as per the declaration in the shipping bills. Subsequently, the samples were also sent to Basmati Export Development Foundation, Modipuram Meerut (BEDF for short) for conducting DNA testing of the samples. On DNA testing, rice declared in shipping bill No. 2152745 dated 04.1.2011 was opined to be Basmati Rice and allowed to export. With respect to shipping b....
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....oratory was also obtained. He relied upon the judgment of Mumbai Bench in the case of Sachdeva & Sons [1987 (29) ELT 917 (Tribunal)]. It was argued that, as per this judgment, if there are different test reports by two different testing authorities, no confiscation and penalties can be imposed upon the assessee. It was also argued that in the judgment dated 13.1.2009 of the of Ahmedabad Bench in the case of Al-Khair Exports & Others, it was admitted the exporters having knowledge that the goods brought for export were Non-Basmati Rice, which was packed by mistake and in that case also there was no certification from Agmark Laboratory. So far as imposition of penalty upon appellant No.3 is concerned, the appellants relied upon the case of M/....
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....re genuine and pertain to the Basmati Rice category. Only after the DNA testing was done, it was realized that the same are belonging to the category of non-basmati rice which stand prohibited under Import Export Policy. Appellants have relied upon the judgment of Sachdeva & Sons (supra) and also attempted to distinguish the case of Al-Khair Exports & Others (supra). It is observed from the judgment of Ahmedabad Bench in the case of Al-Khai Exports & Others (supra) that appellant in that case admitted to have the knowledge that the rice attempted to be exported was of non-basmati rice category. In the instant case, appellant No. 1 had got the certification from Agmark Laboratory to the effect that the goods brought for export ar....
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....ought to have been proceeded against for confiscation and penalty is quite another matter. This was not a simple case in which mis declaration could be presumed on the ground that the goods were not found conforming to the description given in the shipping bill filed for export. The reason is that the goods were accompanied by an Agmark certificate issued at the source (Amritsar/Delhi) certifying the goods to be Basmati rice and the original labels and Agmark seals were found intact on the rice bags when examined at Bombay. What the exporters declared was the same thing as certified by the source Agmark authority. In the circumstances, it becomes difficult to hold them guilty of misdeclaration straight away and subject them to heavy fine an....
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.... and penalty adjudged against them. In the circumstances, I agree with the learned Member (Judicial) and allow both the appeals. 8. It is also opined from the above observations made by the third Member, in the Sachde3va & Sons case (supra) that when there are two different opinions given by the two different testing authorities, no penalty or confiscation is attracted. In the present case also, appellant No. 1 had Agmark certificates in their favour and thus had no knowledge that the rice brought for export was a category of non basmati rice. However, when the DNA testing was brought to appellants knowledge he also requested for taking the goods back to the town as the export orders have also been cancelled, which should have been cons....