ORDER
Jyoti Balasundaram, Member (J)
1. The brief facts of the case are that the appellants herein who are an export firm made shipment under the advance licence DEEC Scheme and submitted the DEEC passbook for getting it logged towards fulfilment of the export obligation. On scrutiny of the documents submitted, the shipping bills revealed that the resultant product to be exported out of the raw material was 100% linen dyed men’s short sleeves shirts while the test reported of the subject goods showed that the shirts were duly composed of regenerated cellulose. On this basis the department was of the view that what was sought to be exported were not linen dyed men’s shirts and therefore the goods were mis-declared in the shipping bills. Proceedings took place before the Commissioner of Customs who upheld the charge of mis-declaration and hence confiscated the shirts and imposed a redemption fine equal to the amount of duty foregone i.e., Rs. 6,39,677/-. In addition he imposed penalty of Rs. 70,000/- under Section 114 of the Customs Act, 1962 for failure to fulfil the export obligation under the advance licence. Hence this appeal.
2. I have considered the rival submissions.
3. The learned SDR submits that remnant sample of linen dyed men’s short sleeves shirts is available for the purpose of re-testing which was declined by the adjudicating authority on the ground that representative sealed samples were not available. The appellants had sought for re-testing particularly when the SASMIRA report obtained by them showed that what was being exported was made out of lenin and dyed fabrics only. I am therefore of the view that the request for re-testing ought to have been allowed particularly when it is confirmed that remnant sealed sample is available with the Customs authorities. I therefore set aside the impugned order and remand the case to the adjudicating authority, namely, Commissioner of Customs who shall get the remnant sample re-tested. The exporters shall be associated with the process of forwarding the samples for re-testing to the CRCL. Thereafter orders shall be passed after extending an opportunity of personal hearing to the exporters.
4. The appeal is thus allowed by remand.