2022 (5) TMI 1369

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.... penalty of Rs.5,00,000/- under Section 112(a) passed by the Additional Commissioner of Customs, Air Cargo Complex, Mumbai that has been confirmed by the Commissioner of Customs (Appeals), Mumbai Zone-III vide his above noted order is assailed in this appeal. 2. Facts of the case, in brief, is that 7 packets of Flumethasone, imported by the Appellant, arrived in Mumbai via Air Cargo service on 01.05.2015. It was sent by overseas supplier M/s. Hangzhou Utanpharma Biology Co. Ltd. vide MAWB No. 043-62829362 dated 23.04.2015. Appellant-importer noticed that purity of the imported goods was less than the required parameter for which he had informed the supplier that the Cargo had impurity of 0.42% and unless the same is below 4%, it would be....

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....soning in the order passed by the Adjudicating Authority that Appellant had admitted about the percentage of impurities being excess of the declared one had itself established misstatement against the Appellant is erroneous, in view of the fact that none of the documents like certificate of analysis, sales contract etc. produced by the Appellant before him were taken in evidence terming Rule 5 of the Customs (Appeals) Rules, 1982 as an embargo for such acceptance despite the fact that several decisions including the one passed by the Hon'ble Madras High Court in the case of Sheth Implex Vivo Solutions P. Ltd. Vs. Commissioner of Customs (Imports), Chennai [2017 (349) ELT 261 (Mad.)] has in clear terms provided for acceptance of addition....

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....peals) is in sharp contrast to the evidence in which he had placed his reliance. To start with, he observed that in the Order-in-Original the adjudicating authority had noted that purity percentage was not available in the purchased order and for that reason he disbelieved the copy of purchased order submitted by the Appellant. However, any prudent man, apart from being a judge, would have got the temptation to call for the lower Court's record and examine the purchase order himself that was being submitted to the adjudicating authority before giving a finding so as to make it rational and believable. Be that as it may, none acceptance of any other documents including certificate of analysis, in which purity has been mentioned, on the groun....