TaxTMI 
TaxTMI 
2026 (5) TMI 985
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.... were imposed upon the appellants under Section 112(a) and 114AA of the Customs Act 1962. 2. Since, all the appeals arouse out of common investigation, common facts and identical issues, the same are being disposed of by this common order. 3. The fact, in brief, is that the appellant M/s Jasmine Bio-technologies imported products from M/s Beijing Kingbo Biotech Co., Ltd., China declaring the same as "Bio-Fertiliser" under Chapter Heading 3101 0099. The Department entertained a view that the imported goods were in fact insecticides containing "Oxymatrin" and therefore classifiable under Chapter 38 as insecticides requiring registration under the Insecticides Act, 1968. Samples were drawn and sent to RCOF, Bangalore and IICT, Hyderabad for testing. The reports indicated presence of compounds namely Matrin, Oxymatrin, Dehydromatrin and Dehydrooxymatrin. On the basis of the said reports, proceedings were initiated alleging mis-declartion, suppression and violation of the Insecticides Act 1968. 4. The Adjudicating Authority confiscated the goods, confirmed customs duty demand and imposed penalties upon the importer firm as well as connected persons. The Commissioner (Appeals) s....
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....r Chapter 38. 10. We have carefully considered the rival submissions and perused the records with their written submissions. 11. The main issue requiring determination is whether the Department has successfully established, through legally admissible and conclusive evidence, that the imported goods are "insecticides" liable for classification under Chapter Heading 3808 and consequentially liable for confiscation for want of registration under the Insecticides Act, 1968. At the outset, we find that entire case of the Revenue is founded upon laboratory reports. However, a careful reading of the reports reveal significant ambiguity and unsustainable. Both the reports are as thus: - 12. The analysis report dated 15.07.2010 specifically records that the "analysis result did not show any peak related to pesticides". This finding goes to the root of the matter. Once the laboratory itself records absence of pesticides peaks, the Department cannot selectively rely upon some presence of naturally occurring alckaloids to conclude that the product is necessarily an insecticide. It is also a matter of considerable surprise that when a report on the very same subject had already been su....
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....O & Co Vs CC, Calcatta & Others [1972 (2) TMI 35 (SC)] and Tele Star Travels Pvt Ltd., & Others Vs Special Director of Enforcement [2013 (2) TMI 396 (SC)] is misplaced. These decisions were rendered in entirely different factual contexts. In the present matter, the technical reports are not merely corroborative but constitute the primary (substantive) evidence. Therefore, denial of cross-examination has caused manifest prejudice to the appellants. 14. We also find that the Department has failed to establish deliberate suppression or wilful mis-statement. The imports were made through proper bills of entry with declared product description and supporting literature. The goods were not clandestinely imported. The Department itself drew samples and conducted extensive investigation only after clearance process had commenced. This, itself demonstrates that the issue involved interpretational dispute regarding classification and nature of products. The Hon'ble Supreme Court has consistently held that where classification dispute arises on interpretational issues, allegation of suppression or wilful mis-statement cannot automatically be sustained. 15. We further note that the produ....
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....s.in 15° July 2010 Analysis Report Sample submitted by : Mr. C. Hari Nath, Direcotrate of Revenue Intelligence, Hyderabad. Date of Submission : 06-07-2010, Ref : F.NO, V/1/2010 HRU (PF) Nature of the Sample : Chemical sample (250 mL) Analysed for : Presence of Pesticides The chemical sample (250 mL) submitted by Mr C. Hari Nath, LO, DRI, HRU, vide the letter with Ref. No. V/1/2010 HRU (PF), for identification of any suspected pesticides has been analysed by two different mass spectrometric techniques, GC-MS and ESI-MS. Gas chromatography - mass spectromeric (GC-MS) analysis can reveal the volatile and semi-volatile organophosphorus, organochlorine and pyrethroid pesticides and insecticides if present by comparison with Wiley and NIST library databases. The sample (10 mL) was extracted with methylene chloride and the methylene chloride fraction was analysed by GC-MS method on ZB-5 MS column as per the analytical conditions given by EPA method 8081A. GC-MS analysis : Result : The analysis result did not show any pesticides in the extract. Electrospray ionization - mass spectrometry (ESI-MS) analysis can provide the information of molecular masses o....