ASSOCIATED PLASTIC INDUSTRIES Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) BOTH the appeals involve the same issue and hence a common order is being passed with the consent of both the sides. In both cases the appellants imported plastic articles (LDPE OR HDPE) and filed bills of entry. The goods were assessed provisionally pending further verification and production of original documents etc. In both the cases the value was enhanced and differential duty was required to be paid.

(2.) THE learned counsel on behalf of the appellants submits that the appellants had declared that imported goods were wide spec/off spec LDPE/HDPE. It is his contention that this aspect has not been examined at all by the Revenue. The test report of the chemical examiner confirmed that imported goods had density below .94 and therefore they are classifiable as under CTH 3901. Issue was not only the correct classification but also as to whether LDPE/HDPE was wide spec/off spec LDPE/HDPE. This issue was not at all considered by the chemical examiner. Further, he also submits that copies of bills of entry were not given to them but only a statement generated was given and from the statement it is not clear as to whether the Revenue has compared the goods of similar nature for enhancement of value. The learned D.R., relies on the arguments relied upon by Commissioner (Appeals).

(3.) WE have considered the submissions made by both the sides. Even though the Commissioner (Appeals) has discussed several aspects such as failure of the appellants to produce manufacturers invoices, failure of appellants to produce test reports from the supplier etc. The fact remains that whether LDPE/HDPE imported by the appellants was wide spec/off spec as claimed by them has not been considered at all and the chemical examiner has limited the examination to find the specific gravity of the product and there is no comment about specification at all. There is no indication to show that specific points were raised requiring the appellants to indicate how exactly or in the what manner they claim LDPE/HDPE to be wide spec/off spec grade. Department has not brought any other evidence to show that LDPE/HDPE imported was of prime variety and therefore the claim by the appellants that it was wide spec/off spec is not correct. We also note that no penalty has been imposed on the appellants but only value has been enhanced. This again shows that there is no allegation of mis -declaration against the appellants. In view of the above, we have to hold that no case has been made out by the Revenue against the appellants that they had deliberately declared lower value. There is also no clear indication as to whether the comparison has been made with the price of LDPE/HDPE which is wide spec/off spec. There is also no evidence to show that LDPE/HDPE was not wide spec/off spec. In view of the above, we find that the order of the Commissioner (Appeals) cannot be sustained and accordingly we set aside the order and allow the appeals with consequential relief to the appellants. (Pronounced in Court)