By TIOL News Service

CHENNAI, OCT 25, 2016: THE Petitioners challenge the Order in Original wherein the goods imported have been re-classified and the value has been revised.

The Petitioners declared the goods as Carbon Black Feed Stock (CBFS), however, on testing the sample, the Chemical Examiner certified it as "base oil" vide report dated 01.06.2014.

The Petitioners contended that reports have given contrary findings and to demonstrate the same, reference was made to the report, dated 16.09.2014, by the Chief Examiner of the CRCL and it is stated that precisely for this reason, the petitioner sought for cross examination of the person, who submitted the test report and this was not considered by the respondent, while passing the impugned order and prayed that the matter may be remanded to the respondent for fresh consideration and the respondent may be directed to afford an opportunity to the petitioner to cross examine the officer who submitted the test reports.

After hearing both sides, the High Court held:

+ The sheet anchor of the submission of the petitioner is based on the denial of opportunity to cross examine. The person, whom they seek to cross examine is an officer/Government servant, working as a Chemical Examiner in the Central Revenue's Control Laboratory under the control of the Department of Revenue, Ministry of Finance, Government of India. The said officer is not a witness to the proceedings. No statement has been recorded by the Department from such an officer either prior to the issuance of show cause notice or thereafter. Thus, the duty exercised by the Chemical Examiner of the Central Laboratory is in effect discharging a statutory duty and therefore, he is not a witness to the proceedings. The petitioner seeks to take advantage of certain observations made by the test report to state that it is inconsistent with the other averments made therein. It is not in dispute that no statement was recorded from the Officer, who submitted the report. In other words, there is no "examination in chief", for permitting cross-examination.

+ The contention of the petitioner is that during the course of personal hearing once more they reiterated the said request. In the considered view of this Court such alleged reiteration is of little avail, since the respondent has already taken a decision on the request made by the petitioner and rejected the same and communicated to the petitioner under letter dated 29.01.2016. Thus, as long as the petitioner has not questioned the letter, it would be too late for the petitioner to put forth the case that their request at the time of personal hearing for cross examination should be considered.

+ The contention raised by the petitioner that they have to be permitted to cross examine the Chemical Examiner of the Central Laboratory is a misconceived plea. Such a request made by the petitioner was rightly rejected by the respondent by passing a separate order dated 29.01.2016 and the petitioner having not challenged the said order, cannot raise the same ground while questioning the impugned order-in-original that too by-passing the appellate remedy.

(See 2016-TIOL-2591-HC-MAD-CUS)