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2016 Supreme(Mad) 3128
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, J.
M/s. Visal Lubetech Corporation - Petitioner
Vs.
The Additional Commissioner of Customs, Coimbatore - Respondent
W.P. Nos. 33741 & 33742 of 2016, W.M.P. No. 29113 & 29114 of 2016
Decided On : 30-09-2016
For the Petitioner: Mr.Vijay Narayanan Sr., counsel Assisted by Mr.Hari Radha Krishnan
For the Respondents: Mr. T.R. Senthil Kumar.
The main legal point established is that in tax matters, there should be no short-circuiting of the statutory remedies, and the petitioner should pursue the alternative remedy provided under the Act.
Headnote:
Customs Act - Goods Classification - 28030090 - Summary: The court discussed the reclassification of imported goods, the denial of the right to cross-examine the officer who submitted the test report, and the applicability of alternative remedies under the Act. The court dismissed the writ petitions and directed the petitioner to file an appeal before the Commissioner of Customs and Central Excise.
Fact of the Case:
The petitioner challenged the reclassification of imported goods and the denial of the right to cross-examine the officer who submitted the test report.
Finding of the Court:
The court dismissed the writ petitions and directed the petitioner to file an appeal before the Commissioner of Customs and Central Excise.
Issues: The issues included the reclassification of goods, denial of the right to cross-examine, and the applicability of alternative remedies under the Act.
Ratio Decidendi: The court held that the petitioner should pursue the alternative remedy of filing an appeal before the Commissioner of Customs and Central Excise.
Final Decision: The writ petitions were dismissed, and the petitioner was directed to file an appeal before the Commissioner of Customs and Central Excise.
Heard Mr. Vijay Narayanan learned Senior counsel assisted by Mr. Hari Radha Krishnan, learned counsel for the petitioner and Mr. T.R. Senthil Kumar learned Senior Panel counsel appearing for the Revenue.
2. The Writ Petitions have been filed by a Proprietorship concern and the son of the Proprietor, challenging the order-in-original, dated 29.04.2016, passed by the respondent, by which the goods imported by the petitioner in W.P.No.33741 of 2016, has been reclassified, its assessable value revised and the duty payable on the re-determined value has been directed to be collected with the proposal to confiscate the goods with an option of redemption on payment of fine, apart from imposing penalty on the concern as well as on the son of the proprietor.
3. The imported filed two bills of entries dated 21.12.2013 and 20.01.2014 at the Inland Container Depot, Irugur, through their Customs House Agent M/s. Nippon Express (India) Pvt., Ltd., for import of certain goods declared as Carbon Black Feed Stock (CBFS), which was stuffed in four and six containers respectively. The importer claimed classification of the goods under Customs Tariff No. 28030090 attracting rate of duty of 22.583% and self assessed the amount of duty as Rs.5,09,161/- and Rs.9,20,551/- respectively with aggregate amount of duty in respect of both the bills of entry as Rs.14,29,712/-. In order to verify the correctness of the self assessment and in accordance with the Alert Circular No.12/2013, issued by the Directorate of Revenue Intelligence, samples were drawn on 30.12.2013 and it was sent for testing to the Central Revenue Control Laboratory. The sample was returned by the Central Laboratory on the ground that it was not sealed properly.
4. It was further stated that the Assistant Commissioner of Customs, ICD, Irugur, who was present at the time of drawal of sample on 30.12.2012, is said to have noticed that the colour and viscosity of the sample returned by the Central Laboratory was different from the original sample, he had seen at the time of drawl of sample. Suspecting tampering the said officer had conducted enquiries with all the officers and gathered information and brought the matter to the notice of the Commissioner of Customs, Central Excise, Coimbatore by letter dated 25.01.2014, who in turn ordered the case to be investigated by the Customs Intelligent Unit, (CIU), who had recorded statements of all the concerned individuals under Section 108 of the Customs Act. The Superintendent, had given a statement on 25.01.2014, stating that he was present during the drawl of sample on 30.12.2013 and that the importer might have replaced the sample drawn with pre-filled cans at the point of drawl. However, he denied having helped the importer in substitution of the sample. A second statement was recorded from the Superintendent on 27.01.2014, wherein he stated to have admitted that he had received the pre-filled samples from the importer's son (petitioner in W.P.No.33742 of 2016) and he had handed over the original samples taken from the containers to the importer's son and substituted samples were handed over to the Inspector, ICD, Irugur. Further, in the statement, the Superintendent is said to have stated that he was informed that the goods imported are inferior variety of CBSF and that is why necessity was there for replacement of the sample. Subsequently, sample was taken and properly sealed and sent to the Central Laboratory, who had certified that the samples were “base oil” vide report dated 01.06.2014.
5. The importer was examined under Section 108 of the Customs Act and statement was recorded on 11.08.2014, wherein he appears to have denied all the charges. The Test Reports dated 10.09.2014, were received from Central Revenue Control Laboratory (CRCL) on 11.09.2014, in respect of all the six samples sent on 12.08.2014. Among the six samples, two samples covered under Test Memos No. 1(3)/2014-15 (CIU) and 1(2)/2014-15(CIU), have been tested as “Pr
