ODYSSEY IMPEX Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE petitioner seek issue of a writ of certiorarified mandamus to quash the letter bearing F.No.S.Misc.103/2011 SIIB (SEA) dated 19.9.2011 issued by the third respondent and direct the respondents to send the samples taken from the consignment which were imported vide Bill of Entry No.4169359 dated 25.07.2011 which are in the custody of the second respondent once again for retest at any of the following laboratories:

(2.) THE petitioner herein placed indent with M/s. Shaoxing Yetco Textile Company limited, China for supply of 60,000 meter of 100% dyed woven fabric with specification made from RAMIE material. Based on the indent placed, the petitioner received sample materials. The assessee got the same was tested at Regional Laboratory, Textile Committee, New Delhi, Ministry of Textiles, Government of India. The testing showed the material as 100% Remi Woven dyed fabric classifiable under the Customs Tariff Heading 'woven fabric of other vegetables fibres under H.S. Heading 53.11."

(3.) ON the arrival of the materials, the petitioner filed Bill of Entry for clearance through their clearing agent on 25.7.2011. On the first check, the customs authorities drew sample from the imported materials and the same was sent for testing toRegional Laboratory, Textile Committee, (Ministry of Textiles, Government of India), Textile Testing and Technical Services, North Wing, 1st floor TNSC Board Complex, 212 R.K.Mutt Road, Mylapore, Chennai 4. The test report of the sample drawn from the imported consignment opined that the imported fabrics is 100% Linen (Flax) Woven dyed fabric classifiable under Customs Tariff 53.09. Based on this, the Appraising Section of Customs Department handed over the matter to the Special Intelligence and Investigation Branch (Sea Port), as the goods attracted Anti Dumping Duty as per the Customs Notification No. 142/2009 dated 21.12.2009 and the duty evation came to Rs.1,07,70,666/ -. Since the said report contradicted the report obtained by the petitioner, the petitioner made representation for retesting the same. The petitioner made representation on 12.8.2011 pointing out that the suppliers are the biggest exporters of Ramie fabrics to India. Since the suppliers had assured that the impugned consignment contained only Ramie fabrics, the petitioner sought for retest to reconfirm whether the imported fabrics are flax or Ramie fabric. The importer expressed his willingness to pay the difference of duty or re -export the cargo in the event of the retesting report confirming the earlier report. Subsequently thereto, the petitioner again entered into correspondence with the Revenue through the counsel. On 19.9.2011, the Deputy Commissioner [SIIB], the third respondent herein passed an order rejecting the plea of the petitioner by taking a view that the samples were tested by an independent authority viz., Textile Committee, which is a specialised agency which renders textile testing and technical services in this field. In view of the categorical opinion given by the said Committee that the imported fabrics is 100% Linen (Flax), the question of sending it for retesting could not be acceded to. Aggrieved by the same, the petitioner has come before this Court by way of writ petition.