AMARSON WOOLLEN MILLS AND Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) These are two appeals, involving a common issue, filed by M/s. Amarson Woollen Mills and M/s. Swastika Woollen Mills against Order -in -Original Nos. 48/2001 dated 2.1.2002 and 130/2002 dated 26.4.2002 respectively.

(2.) Shri H.O. Arora, learned Advocate, submitted that M/s. Amarson Woollen Mills (Amarson in short) imported a consignment of Greasy Wool Micron 32 and above Fleeces VM 1.3% and classified the same under sub -Heading No. 5101.19 of the First Schedule to the Customs Tariff Act that the value declared in the Bills of Entry dated 5.7.99 was US 1.75 pa kg. in which they claimed exemption under Notification No. 20/99 -Cus., dated 28.2.99 that the Chemical Examiner, after testing the sample drawn by the Customs Officer, reported that "the same is greasy wool having average fibre diameter less than 32 Micron;" that after rejecting their request for retest of sample, the Commissioner, under the impugned Order dated 2.1.2002, confiscated the goods with an option to redeem the same on payment of fine, enhanced the assessable value under Rule 8 of the Customs Valuation (Determination of Price of Imported Goods) Rules, demanded duty and imposed penalty holding that the imported greasy wool is of less than 32 micron.

(3.) The learned Advocate, further, submitted that the impugned Order dated 2.1.2002 is contrary to the principles of natural justice as the Chemical Examiner whose report has been relied upon, has not been produced for cross -examination; that their repeated requests for retesting of the sample had been wrongly and arbitrarily rejected; that their request for supply of samples for testing through another independent agency had also been ignored. He also contended that they have not misdeclared the goods as the same were filed on the basis of invoice and test report received from the supplier. He also relied upon the decision in the case of Shree Visalake Mills (P) Ltd. v. CCE, 1998 (28) RLT 866 (CEGAT) wherein it has been held that failure to cross -examine the Dy. Chief Chemist, when the allegation mainly rests on the test reports is violation of principles of natural justice. He also mentioned that the test report relied upon by the Department does not mention the exact micron of the imported wool. Finally he submitted that the Adjudicating Authority is not justified in enhancing the value of the imported goods to 4.65 Australian Dollar.