Page 145 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] HI FASN LEATHER PRODUCTS CO. v. JT. C.C. (AIRPORT & CARGO), CHENNAI 535

16-10-2009 was not correct and therefore, the miscellaneous applications filed by
the assessee for holding a retest of the sample in question ought to have been
allowed by the Learned Tribunal before dismissing the appeals of the assessee.
The said Miscellaneous Application Nos. C/Misc./40163, 40165 and 40167/2013
however came to be rejected on the ground that the said request was made be-
fore the Tribunal after a lapse of more than a decade and CLRI could not be ex-
pected to maintain those samples for a period of about 9 years or more for hold-
ing such retest, after the report dated 16-10-2009 was obtained from the CLRI by
the Revenue Department. The Learned Counsel, therefore, urged that unless a
retest is held, the imposition of the redemption fine and penalty by the Tribunal
could not be justified.
4. Per Contra, the Learned Counsel for the Revenue, M/s. Hema Mu-
ralikrishnan urged that the Report from CLRI was obtained by the Revenue Au-
thorities on 16-10-2009 for the samples drawn out of the confiscated goods of the
appellant/assessee and merely because the description in the said report given
as “Cow Softy Upper Leather (Crunch) Colour. OLIVE (VI)(1)(E)” is differently
worded from the description of the goods as used in the Invoice or the Shipping
Bills of the assessee as “Cow Crunch Upper Leather”, it cannot result in discarding
the said Report, as the samples were taken from the confiscated goods of the ap-
pellant/assessee only in accordance with the Rules and were sent to CLRI for
investigation and giving the Report, whereas the Report obtained by the assessee
itself was of the sample taken by assessee itself without following the Rules and
therefore, the Report dated 22-10-2009 obtained by the assessee, which satisfied
the test of its being “Finished Leather” for the sample “Cow Lining Leather Colour :
OLIVE (KISSEL) (IV)(1)” could not be a ground for holding a retest after a long
period of about a decade and therefore, the rejection of the said prayer of the as-
sessee by the Learned Tribunal was justified. She submitted that the Learned
Tribunal has observed in the impugned order that on the basis of the report of
CLRI dated 16-10-2009, the credibility of which is not disputed by the assessee,
the upholding of imposition of redemption fine and penalty to a nominal extent,
cannot be assailed by the assessee in the present appeals and therefore, the
appeals filed by the assessee deserve to be dismissed.
5. We have heard the Learned Counsels and have perused the records.
6. We are of the clear opinion that rejection of the prayer for retesting
after a long period on the part by the Tribunal cannot be faulted. Even though
the assessee obtained a Report from the same Institute on 22-10-2009, the product
description shown in that Report viz., “Cow Lining Leather Colour : OLIVE
(KISSEL)(IV)(1)” is also not the same as the export of the goods in question which
is subject matter of the present case viz., ‘Finished Leather’. The Report dated
16-10-2009 relied upon by the Revenue, gives the description of the sample is
“Cow Softy Upper Leather (Crunch) Colour : OLIVE (VI)(1)(E)”. A mere difference
of description of the goods in these two Reports given by the CLRI itself, as ob-
tained by the Revenue and assessee, cannot be fatal to the reliance placed by the
Revenue on the said Report dated 16-10-2009 which pertained to the confiscated
goods only. The second Report dated 22-10-2009 obtained by the assessee on the
basis of samples sent by itself other than from confiscated goods cannot be said
to be a ground to call for a retesting to be directed by the Tribunal after a long
period, particularly where the description of the goods in the second report ob-
tained by the assessee itself is also different. These three different descriptions of
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