TaxTMI 
TaxTMI 
2020 (10) TMI 232
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.... was US$ 300 PMT (CIF) or above. The import of 'other calcareous stone' was restricted under the EXIM policy and specific license was required for its importation till 7.5.1999. However, from 8.5.1999, import of blocks/slabs of 'other calcareous stone, other than marble was allowed under SIL if the unit price was above US$ 300 PMT (CIF) for blocks and US$ 450 PMT for slabs. To ascertain whether the imported goods were marble or other wise samples from the imported consignments were drawn and sent to Geological Survey of India (GSI), Nagpur. After testing the said sample, it was opined by GSI that the goods were variety of lime stone but not marble. Even though the appellant did not agree with the said test report and claimed that the goods were marble; however after waiving issuance of show-cause notice, they requested for adjudication and expressed their willingness to pay duty @ US$ 300PMT and debit SIL to the tune of 3 times of value of the imported goods as required under the EXIM Policy in force at the relevant time. The Commissioner of Customs (Import), Mumbai adjudicated the case on 14.3.2000 and observed that since the value of the goods was less than US$ 300 PMT, the same ....
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.... after metamorphic recrystallization is considered as marble if they satisfy physical properties like capability to be polished, etc.. Further, he has submitted that confiscation The Ld. Commissioner has erred in directing confiscation under Section 111(m) of the Customs Act, 1962 as the rate of duty on marble and calcareous stone are and import is permissible against production of SIL whether it is marble or calcareous stone. The Ld. Commissioner ignored the finding of the tribunal once the value is loaded to US$ 300 PMT which the Value for SILs and the appellants were ready to produce SILs. He ought to have held that there is no violation of section 111(d) of Customs Act, 1962. Further, he has submitted that there is no mala fide intention and there was no deliberate mis-declaration as both marble and calcareous stone were permitted under SILs and the rat of duty was same. Further, alternatively, he has submitted that the redemption fine could not have more than 4.5% of the declared CIF value (three times of US$ 148.17) and the same could be around Rs. 71,739/-. 6. Learned Advocate Shri Anil Balani appearing for M/s Bono Marbles and M/s Classic Marbles submitted that the goods i....
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.... US$ 300 PMT (CIF) for block and US$ 450 PMT for slabs. In the present case, samples were drawn and sent to GSI, where after testing it was certified that the goods were a variety of lime stone but not marble. He has submitted that the learned Commissioner after considering the GSI report and its relevance to the present case and evidence of cross-examination of Scientist of GSI and the principles of law laid down in Akbar Badruddin Jiwani Vs. CC 1990 (47) ELT 161 (SC) held that scientific and technical meaning be considered in identifying the product as calcareous stone and not marble. In this context, he has referred to the example of serpentine; in the HSN explanatory notes it specifically excludes Serpentine from Heading 2515 of CTA, 1975 which covers marble also. It is his contention that the HSN goes on to say that even though Serpentine or ophite are sometimes called marble, but they are excluded from the heading 2515 for classification purposes 8. He has further submitted that the claim of the appellant that they had no motive in declaring the goods other calcareous stone other than marble and not as marble is not correct since with effect from 1.4.99 marble slabs valued a....
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.... not directed confiscation but imposed penalty only. Aggrieved by the said order, Revenue filed appeal before the Tribunal. This Tribunal by its order dated 31.5.2002 remanded the matter for de novo adjudication. In the de novo adjudication, learned Commissioner after considering the report of GSI and evidence of cross-examination of one of the Officer of GSI, held that the imported goods are not 'marble' but 'other calcareous stone'. In arriving at the conclusion, the learned Commissioner heavily relied upon the judgment of the Hon'ble Supreme Court in the case of Akbar Badruddin Jiwani's case (supra). The Advocates appearing for the appellants submitted that the principle laid down in Akbar Badruddin Jiwani's case is not applicable to the facts of the present case and distinguishable. However, the learned Commissioner while answering the said argument, observed as under: - "24. It is not understood why the importers are going to such great pains to say that for classification of marble under the import Policy or the Customs Tariff it is the commercial parlance test which would be taken into consideration and not the technical or scientific test. All these issues have been d....
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.... provisions of law on import goods. The contention of the appellant is that all these goods imported into India after 8.5.1999, hence insisting specific import licence only for the reason that the shipment were done prior to the said cut off date i.e. 8.5.1999 is not tenable in law. We do not find merit in the said contention of the appellants in as much as the issue is settled in a series of cases including in the cases by the Hon'ble Madras High Court in Royal Impex Vs. CC, Chennai-II 2019 (366) ELT 820(Mad.), & Agro 1 Stop Vs. CC, Chennai-II 2019 (367) ELT 972(Mad.) and Bombay High Court in Siddhi Vinyak Vs. UOI 2019 (367) ELT 928 (Bom), whereunder it is held that the date of shipment is relevant for compliance and not the date of import. 15. Consequently, the question is whether the goods are liable for confiscation. The Ld. Commissioner has held that the imported goods have been declared as marble but on examination found to be not of 'marble' and is liable for confiscation under section 111(m); also since at the time of its shipment the appellant did not have specific import license, the goods are liable for confiscation under section 111(d) of Customs Act, 1962. 16. We fin....