TaxTMI 
TaxTMI 
TaxTMI 
2025 (5) TMI 2016
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....(Preventive) deciding the proposals made in the Show Cause Notice dated 4.3.2009. It was held in the impugned order that the goods imported by the appellant from Sri Lanka and cleared by filing five Bills of Entry were not "RBD Palmolein mixture" as declared in the Bills of Entry but was "RBD palmolein" and for this reason, the benefit of the exemption notification 26/2000-Cus dated 1.3.2000 was denied. This exemption notification was applicable to the goods which were notified as per the India Sri Lanka Free Trade Agreement ISFTA ; RBD Palmolein mixture was notified but not RBD Palmolein. The impugned order confirmed the demand of duty of Rs. 69,13,917/- under section 28 of the Customs Act, 1962 Act invoking extended period of limitation a....
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....conformed to the standards of "RBD Palmolein" laid down under Item No. A17.20 read with Item No. A17.15 for refined vegetable oil of Appendix "B" of Prevention of Food Adulteration Rules, 1954. 3. The matter was investigated further, statements of various persons were recorded and the SCN and the proposals therein were decided in the impugned order. 4. Aggrieved, the appellant filed this appeal. 5. We have heard Shri Rajesh Rawal, learned Advocate for the appellant and Shri Rakesh Kumar, learned Authorized Representative for Revenue and perused the records. The short question to be answered is whether the finding in the impugned order that the imported goods were "RBD Palmolein" and not "RBD Palmolein mixture" can be sustained and conseq....
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....inion that the statement should be admitted as evidence. 9. Section 138B is reproduced below: Section 138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers ....
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....if they meet the parameters for "RBD Palmolein mixture" which was the description of the imported goods by the appellant in the Bills of Entry. The reason for this is apparent from the first page of the reports. They say that the samples sent were "purported to be RBD Palmolein". The facts of the case show that while the Bills of Entry imported goods which were purported to be "RBD Palmolein mixture" but the officers suspected them to be "RBD Palmolein". The question is which of the two is true. When sending the samples for testing, it does not appear that the CFL Ghaziabad was asked if the samples were "RBD Palmolein mixture" or "RBD Palmolein". Naturally, IT did not test the samples to see if it meets the parameters for "RBD Palmolein mix....
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....st the appellant to fasten duty liability and impose penalties. All these things were clear when the SCN was issued by the Commissioner in 2009 relying on the test reports and then the appellant sought re-test. Thus, the entire delay of five years from 2004 to 2009 was caused by the Commissioner in issuing the SCN. He relied on the test report received five years before but refused to send the samples for re- testing on the ground that the request for re-test was made after five years. There could have been better clarity on the nature of the goods imported and if they were NOT RBD Palmolein mixture as declared had the samples been re-tested but the Commissioner, by denying re-test, removed that possibility. 17. Another possibility of find....
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....re NOT RBD Palmolein mixture as declared. This conclusion in the impugned order is not borne out of the test reports. Therefore, the allegation that the appellant had mis-declared the nature of goods is not substantiated. 18. To sum up: a) The SCN and the impugned order are based on three types of documents- the Bills of Entry, Statements of various persons and test reports. b) The Bills of Entry filed by the appellant are not in dispute. c) All statements of various persons recorded under section 108 of the Act have become irrelevant to prove the case because the Commissioner did not admit them following the procedure prescribed under section 138B of the Act. d) The test reports are one-sided; while they say that the samples meet ....