Judgment:
1. Appellant/applicant herein imported a consignment of goods described as artificial fur and claimed exemption from duty under Notification No. 81/95 and claimed entitlement to import under OGL on the ground that the goods were artificial fur. Examination in the Custom House showed that out of 7 items in the consignment, 3 consisted of artificial fur and 4 consisted of "long piles" and not artificial fur.
The Custom House also found a comparable import at a much higher price.
Appellant submitted Bill of entry along with an invoice showing the price and also containing a statement that the consignment was being sent free of cost for being used in the production of the supplier's boot uppers. Appellant also submitted the invoice received by his supplier. It was admitted that the freight charges met by the supplier to get the goods from his supplier were US $ 3825.00, but the difference in the price shown in the two invoices was insignificant.
When informed about these circumstances, appellant waived show cause notice. Personal hearing was granted to the appellant. Thereafter, the Commissioner of Customs passed the impugned order holding that 4 out of 7 items of the consignment consisted of long piles and, therefore, were not artificial fur and the import of which required a specific licence and that in regard to those 4 items, duty exemption under Notification No. 81/95 was not available. He also relied on 4 other contemporary imports to load the value of 4 items said to be long piles. As against its declared value of US $ 14,019.91, assessable value was determined as US $ 45,273.40. He confiscated the goods under Section 111(d) of the Customs Act, 1962, permitting redemption on payment of fine of Rs. two lakhs and imposed penalty of Rs. 50,000.00 under Section 112(a) of the Act. In view of the particular nature of the submissions made by the learned Counsel for the appellant, we felt that it will be in the interest of justice to set aside the order and remand the case so that there may be early finalisation of the dispute instead of keeping the appeal pending hearing and remanding it after a period of years. We, therefore, waived the requirement of pre-deposit and proceeded to hear the appeal.
2. There are three controversies arising in the appeal, namely, the correct valuation of the goods, entitlement to benefit of Notification No. 81/95 and the 1TC angle. All the three controversies basically rest on the question whether 4 out of the 7 items are artificial fur or long piles. According to the Department, 4 of the 7 items are long piles. If that be correct, the invoice price shown for them on the basis that they are artificial fur cannot be accepted. In regard to the other 3 items, the Commissioner added only the insurance element and the assessed value is not in dispute.
3. It is pointed out by the learned Counsel for the appellant that the record of personal hearing shows that the appellant's representative specifically requested the Commissioner to take samples for testing purpose. However, for some reason, samples were not taken and samples were not sent to any expert for testing. Evidently, the expert in the appraising group must have examined the goods and come to the conclusion that 4 items were long piles. We feel that the Commissioner would have done well to have the samples of the disputed items taken and sent to a textile expert, so that an independent opinion will be available to him; this is particularly so since the appellant specifically sought the samples to be tested by an expert.
4. Initially, the Custom House proposed reliance on a particular comparative import covered by Bill of entry No. 942643 dated 26.6.1996 in regard to long piles. However, in the impugned order, the Commissioner did not follow the value shown in the Bill of Entry but relied on values in respect of 4 other comparative imports. Appellant has a serious grievance that copies of Bills of Entry were not provided nor shown during personal hearing. Shri T.R. Malik, SDR submitted that copies of Bills of Entry would have been shown to the appellant's representative in the course of personal hearing. The record to personal hearing does not substantiate this submission. Further, we fail to see adequacy of merely showing a Bill of Entry or a copy thereof to the appellant's representative in the course of personal hearing, since after seeing the Bill of Entry, it may be necessary for the party to cause some enquiries to be made in regard to those imports. Shri T.R. Malik points out that there was a sense of urgency involved, since the appellant was pressing for early release of the goods. The fact that the appellant was pressing for release of the goods does not mean that requirements of law or principles of natural justice should be short-circuited. We have found such state of affairs in other cases where the importer exhibited great sense of urgency prevailing upon the jurisdictional authority to short-circuit procedures resulting in violation of principles of natural justice. We would like to make it clear that the adjudicating authority should not allow itself to be stampeded into taking hasty action at the instance of importers, since it will always be open to the appellant to complain to the appellate authority of violation of natural justice or adoption of unsatisfactory procedures.
5. Thus we see that on the question of correct classification, the test by an expert would have been useful and on the question of valuation, the Commissioner should have furnished copies of the 4 Bills of Entry to the appellant. As we have already indicated, on the question of classification depends valuation as well as the benefit of Notification No. 81 /95. In these circumstances, the matter deserves to be dealt with afresh after obtaining samples and having the same subjected to expert scrutiny and furnishing to the appellant a copy of the expert report as well as other documents sought to be relied on and after giving an opportunity to the appellant to give written submissions, in addition to oral hearing.
6. For the reasons indicated above, we set aside the impugned order and remand the case to the jurisdictional adjudicating authority for decision afresh in accordance with law and the observations in this order.