TaxTMI 
TaxTMI 
2013 (6) TMI 470
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....em and the materials were seized. The adjudicating authority held that the imported goods is R22 gas (an Ozone Depleting Substance) a single Hydro Chloro Flouro Carbon compound (HCFC) classifiable under Tariff Heading 2903 49 10 of the Customs Tariff Act, 1975 and enhanced the declared value from USD 1.70 per kg. (CIF) to USD 2.42 per kg. (CIF) and re-determined the total value of the goods is Rs.61,50,012/- (CIF). He has also confiscated the entire goods and allowed to redeem the goods on payment of redemption fine of Rs. 10 lakhs for the purpose of re-export and also imposed penalty of Rs. 6 lakhs on the appellant-company and penalty of Rs. One lakh each on Shri Rajesh Mehra, Shri M.A.R. Ahmed and Shri Mohamed Gawher Rauf alias Sanjay, Directors of the appellant-company. 3. The learned counsel submits that the entire case was made out on the basis of report dated 2.5.2012 of Dr. R. Murugesan, Scientific Officer I of Indian Institute of Technology (IIT), Madras. He submits that they have disputed the contents of the report and requested for cross-examination of Dr. R. Murugesan, which was rejected without assigning any reason. He submits that the Dean of IIT, Madras informed th....
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....Cell), viz. Director General of Foreign Trade. He submits that according to Montreal protocol signed by India the use of R-22 is to be phased out much earlier than the period allowed for phasing out gases like HCFC R-401A which is refrigerant gas now predominantly used in tropical countries like India. The issue in dispute is not the exact composition of different gases in a blend of gas. The issue is that the imported gas was found to be R-22 gas when compared with a standard control sample of R-22 gas. The learned AR submits that in the facts and circumstances of the case, cross-examination should not be allowed. 5. We have considered the submissions of both sides and perused the records. The facts of the case as revealed from the record, in brief, are as under:- (i) The appellant filed five manual Bills of Entry for warehousing on the 30th November 2010. It was declared the description of the goods in the Bills of Entry as refrigerant gas HCFC R-401A under Tariff Heading 2903 49 90 of the Customs Tariff Act. The DRI officers made a thorough investigation. (ii) The samples were tested by Electronic Refrigerant gas testing kit and all the samples were found to be 100% R22....
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....o USD 2.42 per Kg. CIF. It was also proposed to confiscate the goods for mis-declaration of description and value under Sections 111(d), 111(l), 111(m) of the Customs Act, 1962 read with Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 read with Ozone Depleting Substances (Regulation and Control) Rules, 2000. It has also proposed to impose penalty on the appellant-company and other appellants who are Directors of the appellant-company. (viii) In reply to show-cause notice and during the personal hearing, the appellant requested to re-test the sample through Govt. institutions / labs like IIT, Anna University etc. without further loss of time. It was contended that the appellant is incurring huge demurrage day to day for the detention of the goods. (ix) The Commissioner acceded to the request of the appellant. The sample was re-tested by IIT, Madras. By letter dated 2.5.2012, Dr. A. Murugesan, Scientific Officer, Gr. I, Sophisticated Analytical Instrument Facility, IIT, Madras submitted the report which is reproduced below:- Please refer to your letter F.NO. VIII/48/54/2010-DRI dated 16.4.2012. Received three small cylinders said to contain refrigerant ....
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....hood in human testimony. But, cross-examination cannot be made straight jacket formula to be applicable in all the cases, compliance of cross-examination is solely dependent upon the facts and circumstances of each case. 7. In the present case, we find that the applicant vide its letter dated 10.12.2012 informed the DRI officers that the supplier wrongly dispatched this material and requested them to send back the goods to them. The two Directors of the appellant-company admitted that the goods in question had been wrongly delivered by the supplier. The learned AR particularly drew the attention of the statement dated 9.12.2010 of Shri Mohamed Gawher Rauf alias Sanjay, Director of the appellant-company and appellant No. 4. It was stated that he is authorized signatory and admitted the mis-declaration of the import consignment. It was further stated that they declared the consignment as R22 only when it is supplied to M/s. Shipping Corporation of India on ship stores, which do not require licence from DGFT. It was also stated that many consignment in the past have been mis-declared to be R401A to enhance sales to various repair service centres to boost sales and improve profitabi....
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....ry which is a party to the Montreal protocol on substances that deplete the ozone layer. The list of countries which are parties to the Montreal protocol will be notified by the Director General of Foreign Trade from time to time. However, import from countries, which are not parties to the Montreal protocol is prohibited. 11. The Ministry of Environment and Forests, in exercise of powers under Section 6, 8 and 25 of the Environment (Protection) Act, 1986, issued Notification dated 17.7.2000 and enacted Ozone Depleting Substances (Regulation) Rules 2000 for regulating ozone depleting substances. Rule 10 of the said Rules, provides no person shall import or cause to import such ozone depleting substance unless he obtains licence issued by the authority. It is noted that R22 is a powerful greenhouse gas with a global warming potential 1810, and indicates that it is 1810 times as powerful as carbon-di-oxide, and this regulates as an additional environmental threat. In the present case, the appellant is a trader and imported R22 refrigerant gas without a licence and also not fulfilled the actual user condition and therefore, considering the larger environmental perspective, there i....