NAGARJUNA ENTERPRISES Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) IN both these appeals, a short question of law and facts are involved and hence they are taken up together for disposal as per law. The appellants have filed Bill of Entry No. 5984 dated 20 -8 -2003 for the clearance of 3083.92 kgs. of Raw Silk of Grade 3A and Grade 4A from China. The value declared for the goods as per the invoice is US$ 39936 @ US$ 12.95/Kg. The respective samples from the consignment were tested by the Central Silk Board to confirm the Grade. As per the test report, vide CSB, Bangalore letter dated 27 -10 -2003 and letter dated 11 -9 -2003, it was found that 598.90 kgs. were of 2A Grade and the remaining were of 3A and 4A grade. Therefore, as per the Customs Notification No. 106/2003 dated 10 -7 -2003, Anti -Dumping Duty was held to be leviable on 2A grade of Mulberry Raw Silk, which worked out to Rs. 3,04,424/ -. The unit price at which clearance is made by the importer was found to be US$ 13.00 per kg. for 2A Grade and US$ 13.50 per Kg. for 3A Grade, which was found to be lower than the contemporaneous imports for identical goods. Hence, the goods were assessed at the prevailing market price of US$ 13.50 per kg. for 3A Grade.

(2.) WE have heard both sides in the matter.

(3.) THE short point raised by the Counsel is that the appellants prayer for re -test of one lot was not accepted by the Commissioner which is against the principles of Natural Justice. It is submitted that 4 lots were found to be correct while only one lot could not show different result. Hence, there was a requirement for re -test and the departments rejection for re -test of this particular lot is not correct. They have also submitted that penalty is not leviable as there is no provision for imposition of penalty. It is submitted that no evidence of contemporaneous nature for enhancement of penalty was relied by the department and hence, declared value is required to be accepted. The learned Counsel relied on the judgment in the case of Supreme Woollen Mills Ltd. v. CC, Nhava Sheva, Mumbai - 2004 (167) E.L.T. 439 (Tri. - Del.) wherein it has been held that there is no provision relating to confiscation and penalties in respect of Anti -Dumping Duty. Similar order was passed in the case of Bajaj Health and Nutrition Pvt. Ltd. v. CC, Chennai - 2004 (166) E.L.T. 189 (Tri. - Mumbai). The learned Counsel also relied on the judgment rendered by the Presidents Bench in the case of M/s. Kaveri Silks and Jute Pvt. Ltd. v. JC, Customs, by Final Order Nos. 576 -578/2004 -NB (A), dated 31 -5 -2004 wherein in similar circumstance, the prayer for re -test was accepted by remanding the matter. He also relied on this Benchs Final Order No. 1861/2004 dated 24 -11 -2004 rendered in the case of M/s. Sree Satyanarayana Silk Koti v. CC, Chennai which also was remanded with a direction to re -test the samples and pass a speaking order by following the principles of Natural Justice.