2019 (5) TMI 1588

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.... of Notification No. 71/2009-Cus. to the Appellant exempting Safe Guard duty on import of aluminium foil. 2. Factual backdrop of the case is that Appellant, a manufacturer of laminated sheets including laminated sheet of metal finish, imported aluminium foils from China vide Bill of Entry no. 844515 dated 06-04-2009 which was duly assessed. Subsequently vide order dated 15-04-2009, Safe Guard Duty @35% vide notification no. 26/2009 Cus dated 23-03-2009 was imposed on Appellant which was also duly discharged by it. Subsequent notification 71/2009 dated 19-06-2009 was issued by the Government of India, Ministry of Finance exempting Safe Guard duty on colour coated aluminium foil w.e.f. the date of notification no. 26/2009 i.e. dated 23-03-....

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....26/2009, appellant's consignment though was undisputedly colour coated aluminium foil, there was no reason available for drawing sample at the stage of clearance for which representative samples of the imported goods were not available but overseas supplier M/s. Zhejiang GKO Decoration Material Co. Ltd. of China had issued a certificate stating that imported goods under dispute was "colour coated aluminium foil" and going by the website of the supplier's company, particular type of aluminium foil imported by the appellant can be ascertained as item description no. JK-006 which was colour aluminium foil, for which the order passed by Commissioner Customs (Appeals) rejecting appellant's prayer is required to be set aside. Learned Authorise....

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....ce dated 03-06-2009 but no reference is found in the order of Commissioner Customs (Appeals) that such certificate was produced before him during hearing of the appeal by him. Appellant also has not sought permission from this Tribunal, as described in Rule 23 of CESTAT procedure Rules, to produce such document at the appeal stage nor was asked by the Tribunal to produce the same, for which it could not be taken as a piece of evidence. Further the certificate does not bear any date of issue to substantiate that it was obtained by the appellant before or during hearing of the appeal by the Commissioner Customs (Appeals). More importantly, the said certificate does not reveal that "colour coated aluminium foil" were shipped to the appellant s....