Page 182 - ELT_3rd_1st May 2020_Vol 372_Part

404 EXCISE LAW TIMES [ Vol. 372

differential duty of ` 1,69,078/- and confiscating the goods, penalty of ` 1,00,000
and ` 25,000/- was imposed on the importer and on the individual appellants
herein. In the impugned order, emanating from the challenge mounted by the
three appellants herein and that of the Customs jurisdiction, duty recovery, con-
fiscation and penalties were upheld while directing the original authority to rec-
tify the omission of fine in lieu of confiscation in the adjudication order.
2. Learned Counsel for appellant contends that intent of the impugned
notification is to exempt ‘natural calcite powder’ in all forms and to include those
which are cleaned while withholding it from synthetic preparations which are
otherwise known as ‘precipitated calcium carbonate’. According to her, the
goods had been provisionally cleared to enable the samples to be tested by Depu-
ty Chief Chemist, Mumbai Customs House and by Central Revenue Chemical
Laboratory, New Delhi; she contends that the test reports are not reliable as only
one of the two factors, viz, ‘oil absorption’ was determined owing to lack of
wherewithal to test ‘particle size’. It is further argued that, despite requests, only
one of the scientists was offered for cross-examination and that even he admitted
that the oil absorption value of 24-26 was rejected as applicable to ‘natural calcite
powder’ despite a permissible range of 20-35 only because literature indicated
otherwise. It is also contended that the tests results could not be accepted in the
absence of report on ‘particle size’. Reliance was placed on Circular No. 43/2017-
Cus., dated 16th November, 2017 of Central Board of Excise and Customs to
demonstrate that such facility did not exist in the chemical laboratories of the
Customs House.
3. Reliance is also placed by Learned Counsel on the decision of the
Tribunal in Gulshan Polyols Ltd. v. Commissioner of Central Excise & Service Tax,
Meerut [2018 (12) TMI 1573-CESTAT ALLAHABAD = 2019 (366) E.L.T. 728 (Tri.-
All.)] which has concluded that samples that are not ‘precipitated calcium car-
bonate IS8167/1978’ should be classified under heading 2530 90 90 of the First
Schedule to Customs Tariff Act, 1975. Among the earlier decision of the Tribunal
that were relied upon in re Gulshan Polyols Ltd., in Shakshi Makfin Pvt. Ltd. v.
Commissioner of Central Excise, Panchkula [2015 (12) TMI 1638 CESTAT
CHANDIGARH = 2016 (243) E.L.T. 972 (Tri.)] conformity with IS 8767-1978 for
classification as ‘precipitated carbonate’ was held to be critical.
4. It would appear that the claim of the appellant for classification un-
der heading 2530 90 30, and for consequent exemption, was denied by classifying
the goods under Heading 2836 90 30 of the First Schedule to Customs Tarif Act,
1975. It is seen from the test results and the cross-examination thereof that the ‘oil
absorption value’ of the impugned goods cannot be excluded from description as
‘natural calcite powder’ without more specific tests and that reliance on tests
does not suffice to revise the classification claimed at the time of import.
5. The contention of the appellant that ‘oil absorption value’ and ‘parti-
cle size’ are both critical in determining classification cannot be lost sight of. The
test report does not refer to ‘particle size’ and it has been officially admitted that
the chemical facilities of the department is deficient in capacity to carry out that
test. As the test result is faulty, we apply the principle laid down in re Gulshan
Polyols Ltd. and re Shakshi Makfin Pvt. Ltd. and the decision of the Tribunal in
Commissioner of Customs, Central Excise and Service Tax v. Manikya Creations Pvt.
Ltd. [2019 (365) E.L.T. 130 (Tri.-All.)] that :
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