ORDER
Gowri Shankar, Member (T)
1. Appeals taken up for disposal with the approval of both sides after waiving pre-deposits. In the order impugned in the appeal the Commissioner of Customs, has held that products sought to be exported by each of the appellants, described as “Benzidine 2.2. Disulphonic Acid” which is a derivative of Benzidine and prohibited for export by Notification No. 108(E), dated 30-1-1990 issued by the Ministry of Environment and Forests. Notices were issued proposing penalty on the appellants for export of dye intermediate which it was contended contained Bezidine 2.2. Disulphonic Acid (also known as diamino benanilide) as it was prohibited by the notification and taking drawback of duty on the goods.
2. The appellant contended that the goods were not a derivative of Benzidine and therefore export was not prohibited by the notification. Commissioner did not accept this contention as the Deputy Chief Chemist held that the product will be derivative of Benzidine. He went into the chemical structural formula as proof of his contention.
3. Subsequent to the order of Commissioner the appellant has been told by M.D. Agarwal, President of Mahesh Raj Chemicals Pvt. Ltd. that vide letter No. 17/3/95-HSMD, dated 29th January, 1998 Ministry of Environment and Forests, has clarified that Benzidine Disulphonic Acid is not covered by the Notification No. S.0.243(E), dated 26th March, 1997. This notification prohibits exports of handling of Azodyes specified therein. It is contended by the Advocate for the appellant that the dyes exported by the appellants do not figure in the Schedule. However, this notification has prospective effect and therefore does not have direct bearing on the earlier exports. Advocate for the applicant also relies on another letter dated 16-10-1997 of the Ministry of Environment and Forests to the Secretary, Gujarat Dyestuffs Manufacturers Association. This letter informs the Secretary that “From the description of the manufacturing process provided by Gujarat Dyestuff Manufacturers Association, Benzidine is not used as a starting material or as an intermediate for the manufacture of Benzidine Disulfonic Acid (BDSA). BDSA does not release free benzidine as per the analysis procedure DIN 53316.” This certificate again has no direct bearing because we cannot say whether the goods manufactured and exported by the appellant are manufactured in accordance with the process provided to the Ministry by the Gujarat Association by using the same raw material. Advocate for the appellants says that he will be in a position to establish that the manufacturing process of the appellants is one which was referred to the Ministry by the Association and that he will obtain from the Ministry of Environment and Forests to show that dyes in question were not covered by the Notification of 108(E)/1990.
4. The appellant had produced before us certificates issued by Dr. V.R. Kanetkar, of the University of Bombay, Department of Chemical Technology, that of 2.2 disulphonic acid Benzidine is not a derivative of Benzidine. This categorically says that benzidine 2.2 disulphonic acid is not a derivative of benzidine. This evidence prima facie goes in favour of the appellant.
5. Since the evidence now before us was not available before the Commissioner we accept the suggestion in made by the departmental representative that the matter may be remanded back to the Commissioner to take appropriate action and to decide whether the product is covered by the Notification of 108(E)/1990. The Commissioner shall consider in addition any other evidence that the appellants may like to produce before it in accordance with the principles of natural justice.
6. Appeals allowed. Impugned order set aside. The Commissioner should decide the matter in accordance with law.
7. On the plea made by the Advocate for the appellants that there are number of export orders which have not been able to fulfil on account of this controversy, and therefore sizable foreign exchange are involved, we express the hope that the Commissioner will deal with this matter urgently.