Shree Sai Enterprise vs Commissioner Of Customs, Mundra

Ramesh Nair, Member (J)

The issue involved in the present case is that whether the goods imported by appellant declaring the same as ‘Industrial Composite Mixture Plus’ under Customs Tariff item 27101990 is correct or the goods are classifiable as ‘Super Kerosene Oil’ under Custom Tariff item 27101910, as claimed by the department. The case of the department is that since Super Kerosene Oil being restricted goods, can be imported only through canalized channel therefore, the goods are liable for confiscation and also for fine and penalty.

Shri D.K. Sinha learned Counsel with Ms. A.D. Sinha advocate appearing on behalf of the appellant submits that the department has rejected the classification declared by the appellant and classified the goods as SKO on the basis of test report of the goods by CRCL, Kandla and CRCL, Delhi. He submits that from the said reports it is clear that all the parameters as specified in IS Specification as per IS-1459 of 2016 were not tested. The test report cannot be relied upon for deciding the classification. He further submits that as per the Load Port report, the parameters as specified under IS Specification is matching therefore, the said report should be given preference over the discrepancy in the test report of CRCLs, Kandla and Delhi. He further submits that the appellant have requested for cross-examination of CRCL Chemists but the same was denied by the assessing officer. He furthersubmits that the identical issue has been considered by this Tribunal in the case of Swarna Oil Services vide Final Order No. A/11026-11028/2020 dated 01.06.2020 wherein the same set of facts were involved and in the absence of parameters matching IS specifications, this Tribunal held that goods cannot be classified as Super Kerosene Oil. He requested that following the said Tribunal decision, present appeal may be allowed.

Shri P. Ganesan, learned Superintendent (AR) appearing for the Revenue reiterates the findings of the impugned order.

On careful consideration of the submissions made by both the sides and perusal of record, we find that there is discrepancy in the test report inasmuch as all the parameters were not tested. The appellant have requested for cross-examination of CRCL chemists in the present case whether there is discrepancy in the test report pointed out by the appellant, it is incumbent on the Adjudicating Authority to allow the cross-examination of CRCL Chemists. As of now, it is settled law that in case the Adjudicating Authority wish to rely upon any evidence, the witness who is the autor of such evidence must be examined in terms of Section 138B of Customs Act, 1962 which is mandatory requirement to complete the adjudication process. It is also found that there is no whisper by the CRCL in the test report about non- testing of certain parameters. When it is a statutory provision as per Customs Act that Super Kerosene Oil must be goods as per IS specification should be tested and only thereafter the conclusion can be drawn that whether the goods is Super Kerosene Oil or other than that. In this position, we are of the view that entire case needs to be reconsidered particularly by allowing cross-examination of CRCL Chemists and then the principles of natural justice shall stand complied with which is foremost aspect to complete the adjudication process.

In view of the above, we set-aside the impugned order and allow the appeal by way of remand to the Adjudicating Authority for passing a fresh order.