TaxTMI 
TaxTMI 
2017 (12) TMI 1571
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....ons as the thickness at the time of export recognizing the concept of transaction value as per provision of section 14 of the Customs Act, 1962 read with WTO Valuation Agreement (Earlier GATT Valuation Code)? (II) Whether CRCL (Central Revenue Control Laboratory) reports which are more than 200% contradictory to each other on the same sample, given by Chemical officer of Grade-II without any rhyme or reason in the case of metal thickness can be relied upon as a sole evidence contradictory to report of approved Laboratory? (III) Whether non grant of tolerance limit factor in the micron calculation as fixed by BIS (Bureau of Indian Standards) makes the report unreliable specially when there are contradictory results of highest order in the different reports? (IV) Whether non grant of cross examination of CRCL Chemical Examiner and other report writers makes the order Violative of principles of natural justice specially when the reports were nonspeaking, drawn by non-experts and were relied upon solely in confirming the demand?" Appeal No.1/2016 "(I) Whether imposition of personal penalty u/s 114A of the Act and other provisions of Customs Act is justified when there is no po....
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....9 on Aluminium foil having thickness 7 or more Micron imported vide said Bill of Entry. 5. Counsel for the appellant has taken us to the record more particularly the order in original wherein it has been observed as under:- 10. In defence, the Importer submitted reply vide letter dated PGF/IMP/09-10/5649 dated 8.03.2010 wherein inter aila, it has been contested that:- They have received the notice alleging not paying safeguard duty premilinarily issued on the basis of CRCL report dated 6.10.2009. For the first time they are receipt of the said test report issued by chemical examiner supported by test Memo on the overleaf of which the relevant report is written without any reason or rhyme the qualification of the examination appears to be chemical examiner that too of grade II having to knowledge about metals like aluminum. They do not accept the said report as neither it is specifying any reason or method of arriving at the same. As per enclosed applications made to relevant officers at the importing port in spite of deposition of appropriate fee till date they are notable to see the result of test report (correspondence in this regard is enclosed herewith) The importe....
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....rcumstances, they are not able to ascertain the method of conducting of test report, the test is carried by a grade-II Chemist and not by a Metallurgical person and the report is not reflecting a single reason. It is neither acceptable nor legally sustainable. Therefore, they requested to again send the sample for retesting. In order to prove that CRCL report is neither a report nor made by a metal experts, non speaking in nature and cannot be relied upon they submitted that there is sea change in the original and revised report in the case of identical material of the same supplier of same party against BOE No.82 and 86 vide report dated 28.08.2009 and 07.09.2009 which is as mentioned below:- Bill of Entry No. Original report Revised Report 82 dated 28.08.2009 14.70 Micron 7.02 Micron 07.40 Micron 7.04 Micron 86 dated 7.09.2009 7.40 Micron 6.31 Micron, 6.50 Micron and 6.53 Micron M/s. Kunshan Aluminum Foil limited has confirmed that from last One and half year they are exporting only below 7 Micron Aluminum Foil to India. They are not only exporting to them but to many more parties in India and confirmed that no party has reported them that their material is....
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....an be ascertained and justice may be imparted to the appellants against whom not only the safeguard duty has been imposed but penal action has also been taken. The basic requirement of the principles of natural justice is that there must be fair play in action and in the instant case there was no fair play as the Adjudicating Authority did not consider the vital and basic aspects before reaching to such conclusions in the impugned order. The Hon'ble Tribunal in the case or Ultra Fine Fillers (P) Ltd. Vs. CE, JAIPUR-II 2004 (167) E.L.T. 331 (Tri. - Del) held that assessee has a right to crossexamine the chemical examiner whose report relied by Department in deciding classification agaisnt assessee. 5.2 He also taken us to the order of the tribunal wherein the tribunal has held as under:- 5. The only point for decision is whether or not the Aluminium Foils imported by the appellant/assessee is of thickness of 7 Micron or above in order to attract safeguard duty. The correctness of imposition of penalty on the appellant/assessee and two other individuals is also to be decided. 6. The admitted facts of the case are that the appellant/assessee imported Aluminium Foils from Chin....
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.... of the orchards; their expected production of the tree is shown as nil. No reason whatsoever is stated in the report why the witness felt that the tree had no productive capacity. The assessment made by this witness appears to have been made on some sort of calculation the basis of which is not stated in the report; nor does the report disclose the reason for the endresult arrived at by the assessor. While judging the acceptability and reliability of the report it is to be borne in mind that Shri Panwar visited the Orchards only in the succeeding year and that too after the apple season of that year was over. Judged in this background the High Court cannot be faulted for having held that the report of the assessor is based more on surmises and conjunctures than actual observations or on scientific reasons. 16. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting,....
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....otice, the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the goods in question had been accounted for in their books of account and the appropriate amount of Central excise duty had been paid. The logic of such request is clear from what is Stated therein. 3. It is now not contested that the matter should go back to the assessing authority, who shall hear the matter de novo after ensuring that lacunae pointed out in the order of the Vice President are met." 6.1 He also taken us to the document regarding Aluminium Foil imported from China wherein while imposing a safeguard duty, it has been provided as under:- (B) on Aluminium Foil falling under heading 7607 excluding- (a) Aluminimu Foil of thickness less than 7 micron (i) 30% ad valorem, when imported from the 23rd day of March, 2009 to 22nd day March, 2010 (both days inclusive). 6.2 He also relied upon the decisions of Gujarat High Court regarding cross examination and referred to the following judgments:- 1. Arunodaya Mills Ltd. and anr. vs. Union of India and anr. 1985 (21) ELT 390 (Guj.), 2. Manek Chemicals Pvt. Ltd. vs. Union of India 201....