TaxTMI 
TaxTMI 
2026 (6) TMI 401
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....f potash containing potassium chloride more than 60% and it is classifiable under CTH 3104 20 00 as fertilizer and it is restricted for export and required license for export. Accordingly goods were seized and on completion of the investigation, show cause notice dated 12.03.2010 were issued to Appellant and others. Thereafter Adjudication authority as the impugned order reclassified the goods and ordered absolute confiscation of the goods. In addition to that, penalty of Rs. 25 lakhs was imposed on the Appellant. The penalties proposed on the co-noticees were dropped. Aggrieved by said order, present appeal was filed. 3. When the appeal came up for hearing, the Learned Counsel for the Appellant submits that they never mis-declared the goods for export and it was Potassium Chloride known as Industrial Salt. The appellant was only a trader of chemicals and they are not doing any repacking and the goods are exported in the packing in which they have been received the goods. There were no restrictions for export of Industrial Salt and the chemical analysis report obtained by the department to allege illegality does not contain any details regarding the content of potassium chloride....
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....cation Authority, Learned Counsel submits that while submitting reply to SCN, the appellant had requested for providing them copies of the test reports if any, pertaining to those exports to enable them to counter the allegations to arrive at the conclusion as to whether the product exported by them is Muriate of Potash. As alleged by considering the percentage of Potassium chloride and also the value since there was an allegation with regard to mis-declaration of price which was based on the comparison of prices of other exporters. Further submits that in the Show Cause Notice and impugned order the price has also been determined on based on a website report and it was settled law that transaction value cannot be determined based on the details obtained from website. Learned Counsel also submits that when it is alleged that the appellant had undervalued the price of the goods by declaring it as Rs.19.57 per kg, whereas, it is the contention of the department that the price should be around Rs.35/- per kg. But there was no evidence to allege under valuation. Further from the list of prices indicated in the impugned order, in some of the cases, the prices declared were around the sa....
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....T 596 (Tribunal) (iv) Commissioner Vs. M. Naushad - 2007 (210) E.L.T. 464 (Tribunal) (v) Parvati Kailasam Vs. CCE., Tirupati - 2010 (252) ELT 405 (Tri.-Bang.) (vi) Department of Customs Vs. Arvind Kumar - 2017 (348) ELT 411 (Del.) 6. Learned Counsel draws my attention to the analysis report dated 01.09.2009 of the fertilizer samples relied by the Adjudication authority and submits that during cross examination, the signatory to the above certificate also admitted that she is not aware about the nature of the both Potassium Chloride and industrial salt. Scientifically potassium chloride and muriate of potash are different items and both of them different properties and chemical components and chemical composition. 7. Learned Counsel further drew our attention to the findings recorded also with regard to the proposed classification of the goods meant for export as 'MOP" and submits that the Ld. Commissioner has rejected the request of the appellant for retest on the ground that the Fertilizer Control Department of Government of Karnataka is a notified laboratory and hence their test report is final. The Ld. Commissioner failed to note that when he....
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....chloride and the material is naturally occurring inorganic chemical compounds. Hence, on the suspicion that fertilizer (MOP) was being exported by mis-declaring the same as "Industrial salt" test samples were again drawn and sent to the Chemical Examiner, Custom House, Chennai to ascertain whether the sample is (i) of mine origin or industrial origin and (ii) whether potassium fertilizer or otherwise. The Chemical examiner in her report dated 23.07.2009 stated that the sample is in the form of white & a few orange coloured crystals; that it is comprised of potassium chloride together with small amounts of compounds of sodium and magnesium; that for query No. (ii), an expert opinion may be obtained. Another sample was drawn on 20.08.2009 and sent to the Deputy Director of Agriculture (Fertilizer Control Laboratory), Government of Karnataka. The result of test of Samples drawn on 20.08.2009 was given on 07.09.2009 by the Deputy Director of Agriculture (Fertilizer Control Laboratory), Government of Karnataka. The test report indicated that the item under export is 'Muriate of Potash' containing water soluble Potash (as K2O) percent by weight ranging between 61.93 to 63.04. Shr....