ORDER
K. Sankararaman, Member (T)
1. These are 3 stay petitions numbered respectively C/Stay/820-821/95-A corresponding to Appeals C/477-478/95-A filed by M/s. Maharashtra Marble Company and C/Stay/ 884/95-A corresponding to C/476/95-A filed by M/s. NITCO Marbles and Granites. It was explained by the learned Counsel for the petitioners, Shri Nitin Kantawala that the first mentioned applications had effected two imports one at Bombay Port and the other at Nhavasheva and the second mentioned applicants M/s. NITCO Marbles and Granites had imported their goods at the Nhavasheva port. He further explained that the goods involved in all these imports were the same. The adjudication by the concerned Collectors proceeded on the same basis and the findings followed the same pattern. The defence taken by the respective parties before the concerned Collectors was of a common pattern. He stated that he would be submitting common arguments in respect of the 3 stay petitions. He made a further plea that as the goods are remaining detained by the Custom Houses and as the containers in which the goods had been imported have not been destuffed they are incurring detention charges which are to be paid by them in dollars. There would be considerable out go of foreign exchange if the matter is delayed and in the circumstances, he would plead that as the facts involved remain in a narrow compass, it would be advantageous to all concerned if the appeals themselves are taken up for early disposal. Learned Counsel was requested to address his arguments on the stay petitions in the first instance and his request for the early hearing of the appeals would be considered in the light of the order to be passed on the stay petitions.
2. Taking up the issues involved in the stay petitions, Shri Kantawala stated that there are 3 issues involved. The first one was the insistence by the Customs authorities on establishing a nexus between the goods imported and the goods which had been exported in these cases. The applicants are transferees of the Licence which had been issued to other parties who had already exported the goods. The licence had been issued to them on the basis of such export performance. As the applicants had got the licence transferred in their names the question of looking into the nexus at this stage does not arise as the facts of export had already been looked into by the authorities concerned and on their satisfaction that export had already taken place, Licences had been issued which were then transferred to the applicants ultimately. The customs duty exemption by way of the relevant exemption Notifications did not lay down the said nexus condition. It is only way of Public Notice issued by the Customs House that this had been introduced. Learned Counsel submitted that such a step taken by the Customs House would not alter the legal position which flows from the relevant Notifications.
3. The next point argued by Shri Kantawala was that the Customs House had objected to the imports on the ground that the goods imported are not rough marbles; but polished and ready to use product. In this connection, he referred to the various evidence obtained not only by them but received by the Customs House itself in response to their own independent enquiries. These certificates had been issued by independent persons of authority in the line. They included reputed persons in the building industries, architects, and dealers in the line. Such certificates had not been taken note of by the Collector who, instead, had only relied upon the examination report of the customs staff who had only carried out visual inspection. The shed Appraiser who had carried out the examination is not an expert in the line. The Collector had also gone by the opinion given by the Indian Institute of Technology, Bombay. The latter opinion was contested by them as the samples sent to them were not drawn in their presence and they did not know what samples had been sent to them. Further, the opinion given by them was also a preliminary one. Their final report or opinion is not on record.
4. The third aspect of the case pleaded by the learned Counsel relates to the valuation of the goods. The Collectors had applied the value of fully finished marble slabs. There was no contemporaneous imports of like goods the value of which could have been considered by the Collectors. The Collectors have gone by the value shown in some quotations of marble slabs of the qualities not imported into the country. Such a comparison would not be proper while determining the value of the goods in question which he contends were marble slabs. He concluded his arguments by reiterating plea already made for the early hearing of the appeals after granting unconditional stay.
5. The arguments were opposed by Shri T.R. Malik, learned SDR. He supported the impugned orders and contends that the said decisions had been taken by the Collectors after considering the identity of the goods as fully finished marble slabs on the basis of the examination reports and the report of the Indian Institute of Technology. On the point taken by the learned Counsel that latter opinion was only of a preliminary nature, learned SDR states that even this report made it clear that the goods were fully finished marble slabs and in the circumstances, the Collector was justified in going by that opinion. As regards the plea regarding the nexus between the imported goods and the goods that had been exported prior to the import, it is not as if that nexus is not provided for in the Notification itself. He read out the relevant notification. He pointed out that the responsibility of the Customs Department is to safeguard Revenue and ensure that the Licence conditions are fulfilled. The Licence in question had been issued for rough marble slabs and as the goods imported did not conform to the description, but were ready to use finished marble slabs, the imports had been rightly objected to. He pleaded that stay may be declined.
6. We have considered the submissions advanced before us by both sides. The expert opinion that had been marshalled by both sides is somewhat conflicting. While the opinion to the effect that what have been imported are only rough marble slabs which are required to be put to considerable processing has been obtained by the applicants from certain experts on their own, such opinion had also been provided by the other experts who had been contacted by the Customs authorities directly. On the other hand, the opinion that had been relied upon by the Collector is provided by the Indian Institute of Technology. As already stated, the said opinion itself indicates that it is a preliminary report. This report which is dated 1-3-1995 bears the signature of two Professors, Department of Earth Science. The report of the Professors of the Department of Earth Science of the IIT indicates that it is a preliminary report based on visual inspection only. It goes on to say that detailed report will be submitted after completion of all the investigations and analysis. It further goes on to say that it can be said that the goods are ready to use depending on their end-use. The goods consist of glazed slabs as well as unglazed slabs. As regards polished glazed slabs they could be used readily as facing stones while polished unglazed slabs and tiles can be used as kitchen platforms, sinks, in bath rooms and toilets. The certificate is dated 1-3-1995. The impugned orders have been passed on 28-4-1995. By that time, it is quite likely that the final report could have been obtained from the Indian Institute of Technology to enable the Collectors to come to a definite conclusion based on the final report. In the circumstances, the observations in the impugned order that the report of the IIT was unambiguous leaves room for doubt. In the circumstances and in view of the fact that the goods in question are still lying detained incurring heavy demurrage and container detention charges, we are inclined to grant waiver of pre-deposit of the disputed amounts of duty and penalty. In view of the circumstances explained, we are also inclined to allow the request for early hearing of the appeals and accordingly post them for hearing on 1-11-1995.
