2026 (4) TMI 1680

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....for testing, who by report dated 06.05.1998 reported that the sample was of Crystalline Limestone (of IBM specification) and it does not show any evidence of metamorphic recrystallization and thus not a marble. 3. A show cause notice dated 21.07.1998, along with addendum dated 29.06.2001, was issued to the appellant seeking to confiscate 925 sq.mtrs. of declared quantity of goods imported and 204.25 sq.mtrs. of goods found in excess, and seeking to impose fines and penalties. Order-in-original dated 19.06.2008 was issued confiscating 925 sq.mtrs. of goods, imposing redemption fine of Rs.2,52,000/- and penalty of Rs.25,000/- on the importer. 4. On an appeal filed by Revenue and the appellant, the Commissioner (Appeals) passed a common order-in-appeal dated 10.02.2009 upholding the orders-in-original impugned before him. On an appeal filed by the appellant, this Bench vide final order dated 20.11.2009 remanded the matter back to the original authority to finalise the demands along with provisional assessments. Accordingly, the order-in-original in remand was passed on 30.01.2015 wherein (i) 925 sq.mtrs. of goods imported vide Bill of Entry No. 1343 dated 04.09.1996 at ....

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....f description or value, no question fine and penalty arises. She would submit that the Tribunal in the case of Mahalakshmi Tiles & Marbles Co. Pvt. Ltd. vs. Commissioner of Customs, Mumbai [2001 (137) ELT 191 (Tri-Mumbai)] held that there are departmental instructions to allow excess weight upto 25% in respect of marble due to uneven nature of rough marble slabs. In the instant case, the excess weight upto 204.325 sq.mtrs. is within the limit. She submits that the Tribunal in the case of Topaim Properties Pvt. Ltd. vs. Commissioner of Customs, Nhava Sheva [2005 (192) ELT 950 (Tri.-Mumbai)] held that when there is no misdeclaration of weight, penalty cannot be imposed. 7. Shri C.S. Vinod, learned authorised representative for the Revenue reiterates the findings of the impugned order and submits that there was a clear misdeclaration of weight and nature of the goods. Hence the same were rightly held to be liable for confiscation. He relies on the ratio of the Hon'ble Supreme Court decision in the case of Akbar Badruddin Jiwani vs. Collector of Customs [1990 (47) ELT 161 (SC)] and submits that classification is to be made on scientific or technical definition. He submits that since....

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....y about metamorphic re-crystallization". "Q.53 What observations in the sample would lead one to the conclusion that there has been an onset of metamorphism and end of diagenesis? Ans. To my earlier answer, I have referred to the term triple point, junction, etc. If we get these features, we say that rock undergoes metamorphosis. "Q.54 Would any observations apart from triple point, junction, indicate the onset of metamorphism? Ans. The presence of polliation, schitosity, lineation, etc., are also features of metamorphism." 15.14 The importer has tried to bring out that when there is extreme diagenesis, the boundary between diagenesis and metamorphism gets blurred and there could be a possibility of a low-grade metamorphism. Here I find that the importer had chosen to selectively quote replies to some of the questions answered by the Senior Geologist during the Cross Examination to counter the Test Report and to try to prove their point that the metamorphism might have taken place thus, converting limestone into marble. I observe that ignoring the reply of Shri S.K.Tripathy to Question No.47 and Shri Taraknath Pal to Question No. 52 whic....

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....elow:- "Q.60 Is the examination of the site of formation not required to determine whether metamorphism has taken place? Ans. Whether metamorphism is there, it can be easily seen under a microscope. For that from which site the sample has been taken is not important." "Q.61 Would you say that the crystals observed in this sample were edioblastic, hypedioblastic or xenoblastic? Ans. These three terms represent the shape of the crystal in a metamorphic rock. Since Sparry-calcite is not formed in a metamorphic condition, the terminology for the same crystals may not be used." "Q.62 So, according to you, Sparry calcite crystals are not edioblastic? Ans. Yes, I would like to prefer the term "Ediomorphic" rather than "Edioblastic" in this case." 15.16 The Geological Survey of India, Nagpur, a highly reputed and globally recognized Institution, stated in its Test Report that the product was a LIMESTONE. Since there was no metamorphic re-crystallization and thus, the product was not a Marble. This was a categorical statement of facts, I find that during the Cross Examination of two experts from this prestigious institute, Dr. T....

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....them." 12. Learned counsel for the appellant seeks to rely on the decisions in Just Marble and Stone Man Marble Industries. The facts of the cases are different from the present case. We find that in the case of Stone Man Marble Industries, this Bench has decided on the basis of the report which indicated the impugned goods therein to be crystalline limestone of the marble. We find that in the impugned case, the report is categorical to state that the impugned goods are limestone and not marble. We also find that in the case of Just Marble also, this Bench has observed as follows based on the non-categorical report of the GSI: "6. In the present case also the report of the GSI does not give clear finding in support of the claim by the Department. The first report of Mines and Geology Department, Rajasthan contained conflicting views based on differing criteria. In 3 cases, after recording that the imported goods can be considered as limestone, the same was opined to be commercially usable as marble. The decision of the Hon'ble Supreme Court in the case of Akbar Badruddin Jiwani (supra) lays down the guidelines/yardstick based on which limestone can be held as having rea....