Judgment:
1. The appellant filed this appeal against the order-in-original passed by the Additional Collector, Customs, Bombay. In the impugned order, the Additional Collector, Customs, Bombay held that the appellant has misdeclared the goods and ordered confiscation Under Section lll(d) of the Customs Act, 1962 and allowed to redeem the goods on payment of redemption fine of Rs. 1.5 lac. The Additional Collector, Customs also imposed a penalty of Rs. 25,000/-.
2. The appellants made import of Tin Mill Black Plate (TMBP) uncoated and filed B/E claiming the classification under Customs Tariff Heading 7209.90. The respondent took the sample out of the imported goods and the sample was sent to Deputy Chief Chemist and the Deputy Chief Chemist opined that in appearance and presence of chromium on the surface would indicate that it would be Tin Free Steel (TFS). On the basis of this report, the impugned order was passed after affording an opportunity of personal hearing to the appellants.
3. Ld. Counsel appearing on behalf of the appellants submitted that Dy.
Chief Chemist in his report has not given any positive finding in respect of the sample that it is Tin Free Steel (TFS). He submits that Dy. Chief Chemist advised the respondent to refer the matter for confirmation to Chief Chemist, Central Revenue Control Laboratory (CRCL), New Delhi or to the Director, Central Metallurgical Research Institute, Jamshedpur for confirmation. He submits that the appellants vide their letter dated 11-3-1992, much before the personal hearing, made request for resampling and retesting of the consignment. He therefore, prays that the appeal be allowed.
4. Heard Shri S.N. Ojha, JDR appearing on behalf of the respondent Revenue.
5. In this case, the appellants made import of TMBP uncoated and filed a B/E claiming assessment of the goods imported under Customs Tariff Heading 7209.90. The sample was drawn from the goods imported which was sent for examination to Chief Chemist. The test results of the sample is reproduced below: "The sample is a cut piece of sheet made of steel bright surfaces on both the sides and no patches of rusting are visible. The tests conducted here indicate the presence of chromium on the surface.
Appearance and presence of chromium on the surface would indicate that it could be TFS. However, this Laboratory is not equipped to carry out the tests as given in ASTM-A-657-74. Hence it may be referred to Chief Chemist, CRCL, New Delhi or to the Director, Central Metallurgical Research Institute, Jamshedpur for confirmation." 6. In the test results, the Dy. Chief Chemist only opined that the sample could be of TFS and for confirmation, he advised to send the sample to CRCL, New Delhi or to Director, Central Metallurgical Research Institute, Jamshedpur as the Laboratory is not equipped to carry out the tests. The respondent has not sent the sample to the Chief Chemist, CRCL, New Delhi or to Director, Central Metallurgical Research Institute, Jamshedpur as suggested by the Dy. Chief Chemist in his test report.
7. The Dy. Chief Chemist in his test report admitted that his Laboratory is not equipped to carry out the test and no definite opinion was given by him that the sample is of Tin Free Steel (TFS). We therefore, find that the order passed by the Additional Collector, Customs, Bombay whereby it was held that the goods imported are not of Tin Mill Black Plate (TMBP) and are of Tin Free Steel (TFS) is not sustainable. In these circumstances, the impugned order is set aside and the appeal is allowed. The appellants are entitled for consequential relief, if any, in accordance with the provisions of unjust enrichment as per the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. v. U.O.I, reported in 1997 (89) E.L.T. 247 (S.C.).