Commissioner of Customs (CSI Airport), Mumbai Versus Gokuldas Kotahwala, HUF>2009(09)LCX0099

2009(09)LCX0099

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J)

Commissioner of Customs (CSI Airport), Mumbai

Versus

Gokuldas Kotahwala, HUF

Final Order No. A/258/2009-WZB/C-II/CSTB, dated 18-9-2009 in Appeal No. C/491/2002

Advocated By -

Shri T. Tiju, SDR, for the Appellant
Request for Adjournment, for the Respondent.

[Order per: Ashok Jindal, Member (J)]. -

Revenue preferred this appeal. On perusal of the record, it is found that the respondent never appeared before the Bench since 12-5-2008 and sought adjournment and on the request of the respondent, the matter was adjourned to 19-6-2008. Again the matter was listed for hearing on 28-7-2008. This time also the respondent sought an adjournment and the matter was adjourned to 10-9-2008. Against on the request of the respondent, the matter was adjourned to 14-10-2008 and the matter was again listed on 18-6-09 wherein again on the request of the respondent, the matter was adjourned to 18-9-2009. Today also the respondent requested for adjournment, which is not considered by the Bench and the matter was heard and finally decided on merits.

2. The brief facts of the case are that the respondent filed Bill of Entry for clearance of two types of goods viz., (a) Rough Tumbled Turqurenite (b) Rough Tumbled Tiger Eye. The respondent claimed the clearance of the goods under CTSH 7103.10 read with exemption Notification No. ll/Cus./78 dated 7-1-78.

3. At the time of physical examination of the impugned rough semi precious stones, it was observed that there was no doubt that the rough semiprecious stones viz., Tiger Eye was entitled for duty exemption under the said notification. However, the second semi-precious stone was sent to the Gemmological Institute of India, for testing and their report indicated that the goods may be reconstructed/treated Turquoise and not the rough Turqurenite as declared by the respondent. On the request of the respondent, the sample was again sent to Deputy Chief Chemist Laboratory for analysis and as per the port of DYCC Laboratory that the goods were mainly composed of calcium carbonate, synthetic resin binds and organic colouring matter. The Joint Commissioner held that the goods were misdeclared and classified under CTSH 6810.99 and the duty @ 85% Basic and 20% CVD and a sum of Rs. 2,13,429/- was assessed as duty and held that the rough Tumbled Turqurenite was not a semi-precious stone.

4. Aggrieved from the same, the respondent preferred an appeal before the Commissioner of Customs (Appeals), who allowed the appeal of the respondent with the observation that there is no categorical test report and the test report submitted by the respondent is very authentic and the benefit of doubt was given to the respondent. Aggrieved from these observations, the revenue preferred the appeal, which is before us for disposal.

5. The short point involved in this matter is that the respondents are claiming classification under Heading 7103.10 read with Notification No. 11/78-Cus. which exempts rough semi-precious stones falling under Heading 71.03 of Customs Tariff. However, the department is of the view that the goods are classifiable under Heading 6810.99, which covers articles of other artificial stones and as such the exemption of Notification No. 11/78-Cus. is not available to the impugned goods.

6. Shri T. Tiju, the Ld. SDR appearing on behalf of the Revenue submits that as per the report of the Gemmological Institute of India, the goods may be reconstructed/treated Turquoise and accordingly held that they were not the Rough Tumbled Turqurenite as declared by the respondent and after the report was brought to the notice of the respondent, whose submitted a certificate dated 19-1-94 from M/s. Top Stones, Cape, Sough Africa (supplier) in which it has been certified that the Tumbled Turqurenite is a natural semi-precious stones and mainly contains Magnesium Carbonate and is also known as Magnesite. To support the claim, the respondent made a request to the department that the said goods be sent to Deputy Chief Chemist Laboratory for analysis and the said test report indicates that the goods- are mainly composed of Calcium Carbonate, Synthetic Resin binds and Organic Colouring matter. After obtaining the test report, the respondents satisfied themselves and requested for the amendment of the Bill of Entry and the Custom Tariff heads through a letter dated 28-1-1994 and accordingly, the goods were assessed.

7. He further submitted that the G.I.I, test report is a gemological test report showing physical characteristics whereas, the DYCC report is an analytical report showing the chemical composition of the stone. Both the reports are mutually exclusive and there is not contradiction in these two reports. He further submits that the report of DYCC indicated that the goods are mainly composed of Calcium Carbonate, Synthetic resins and Organic colouring matter and the goods are found to be different from the goods shown in the certificate issued by M/s. Top Stones, South Africa. He prayed that the impugned order to be set aside.

8. Heard.

9. We have gone through the records and considered the submissions made by the Ld. DR. We find that at the request of the respondents, the matter was adjourned from 12-5-2008 to 19-6-2008, from 28-7-2008 to 10-9-2008 and to 14-10-2008 and then to 18-9-2009. Even today, the respondents have again requested for adjournment and we find no justification to grant further adjournment.

10. The Commissioner (Appeals), who allowed the appeal observed that there was no categorical test report and the test report submitted by the respondents is very authentic and, therefore, held that the respondents were eligible for the benefit of the Notification and held that Rough Tumbled Turqurenite was a semi precious stone. We find that the Revenue had referred the stone to the Gemological Institute of India, who stated that the same may be considered as reconstructed/treated stone. On the request of the respondents, the sample was referred to the Deputy Chief Chemist of Revenue Control Laboratory, who indicated that it was mainly composed of calcium carbonate, synthetic resin binds and organic colouring matter. As rightly pointed out by the Ld. DR, both the reports are not contradictory and in fact come to the same conclusion that the stone in question was not a natural one and has to be treated as reconstructed/treated. Gemological test report describes the physical characteristics whereas, the DYCC shows chemical composition. Further, as rightly submitted by the Ld. DR, even the chemical composition of the stone deffers when compared with the certificate produced by the respondent and the report of the DYCC. The respondents have not chosen to explain the differences in chemical composition also.

11. Under these circumstances, we allow the appeal filed by the Revenue and hold that the product in question is not a natural rough semi-precious stone and uphold the order of the Joint Commissioner.

(Pronounced in Court)

Equivalent 2010 (250) ELT 0158 (Tri. - Mumbai)

Equivalent 2010 (096) RLT 0306 (CESTAT - MUM.)