COMMISSIONER OF CUSTOMS, COCHIN Vs. VICTORY TRADING CO.

JUDGEMENT

(1.) THIS appeal is filed by the Revenue against Order -in -Appeal No. 223/2008 dated 31 -7 -2008.

(2.) THE issue involved in this case is regarding import of Palm Kernel Fatty Acid Distillate (PKFAD) falling under Chapter Tariff Heading No. 3823.11 19. The said consignment was subject to test and goods were released on test bond. On test, it was noticed that few of the drums were not PKFAD but were RBD Palmolein. Accordingly, notice was issued to the importer and differential duty of Rs. 4,42,395/ - was confirmed by the Adjudicating Authority and confiscation and penalty were also ordered for the misdeclaration of the goods. The appellate authority also upheld the said Order -in -Original. The matter reached to CESTAT, Bangalore vide Final Order No. 1292/2006 dated 10 -11 -2006, Tribunal remanded the matter back to the Adjudicating Authority, directing him to provide a copy of the test results and to consider the submissions before disposing the issue. The Adjudicating Authority after granting a personal hearing and after providing the copy of test report again held that the importer/respondent is liable to pay differential duty of Rs. 4,42,395/ -; confiscated the goods under Section 111(m) of the Customs Act, with an option to redeem the same on payment of fine of Rs. 70,000/ - and also imposed a penalty of Rs. 10,000/ -. Aggrieved by such an order, importer filed an appeal before the learned Commissioner (A). The learned Commissioner (A) after considering the submissions made, set aside the Order -in -Original and partly allowed the appeal by reducing the redemption fine to Rs. 35,000/ - and penalty to Rs. 5,000/ -. Respondent did not file any appeal against such an order but Revenue is aggrieved by the said order and hence, they are in appeal.

(3.) THE learned DR submits that the order of the learned Commissioner (A) is not correct and proper. It is his submission that in the earlier round of appeal before the Tribunal, the certificate of analysis was not given and the same was also not produced before the Original Authority. Hence, the matter was remanded. It is his submission that during the de novo adjudication proceedings, no evidence was produced by the party but during the proceedings before the learned Commissioner (A), the importer produced the fresh evidence i.e., letter from the supplier stating that the 5 drums of palmolein was wrongly loaded in the consignment. It is his submission that the said letter dated 3 -1 -2006 is unsigned and is considered to be only an afterthought. It is his submission that no further evidence has been produced as to the correct stock at suppliers end, subsequent to the mistake of loading of 5 drums of RBD palmolein. Hence, the learned Commissioner (A)s reliance on the said letter for setting aside the Order -in -Original is incorrect. He submits that their appeal may be allowed.