IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CUSAP No.19 of 2010 Date of decision: 22.7.2010 Commissioner of Customs. -----Appellant. Vs. M/s Kochar Sung Up Acrylic Ltd. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Gurpreet Singh, Sr. Standing Counsel for the appellant. Mr. Jagmohan Bansal, Advocate for the respondents. --- ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the Revenue under Section 130(1) of the Custom Act, 1962 (for short, “the Act”) against order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi dated 5.2.2009, proposing to raise following substantial questions of law:- “(i) Whether the respondents were not required to use the entire quantity of duty free imported material i.e. 68840.60 Kg. Of polyester filament yarn and produce evidence showing its use in the manufacture of export product so as to be eligible for benefit of exemption notification No.30/97-Cus dated 1.4.1997 and CUSAP No.19 of 2010 Notification No.51/2000-Cus dated 27.4.2000 in view of Apex Court's Judgment in the case of M/s Mysore Metal Industry versus CC, Bombay reported in 1998 (0%) LCX 0057? (ii) Whether the onus of proof as to the satisfaction of the conditions of exemption Notification shall not be on such importer claiming benefit of exemption Notifications which is a settled law as per above said Apex Court's Judgment. (iii) Whether the Hon'ble Tribunal has not erred in brushing aside the test report of CRCL' New Delhi in dismissing the appeal filed by the Revenue without appreciating the fact that the importer had failed to explain the shortage of 28878.11 Kg. Of polyester filament yarn satisfactorily?” 2. The Assessee is engaged in manufacture and export of blankets. It took an advance licence under the Exim Policy for duty-free import of raw material to be used for manufacture of items to be exported. On 30.8.2002, during search, it was found that licence had been misused, as the goods were not properly used for manufacture of export items, as required. Accordingly, notice dated 12.9.2003 was issued for recovery of customs duty and for confiscation of raw material. Criminal action was also proposed. Ultimately, the adjudicating authority passed order against the assessee. On appeal, the Appellate Authority i.e. the Commissioner upheld the plea of the Assessee that the material 2 CUSAP No.19 of 2010 was actually used for the purpose for which the same was imported under the licence. It was held:- “While calculating demand, department has presumed 'others' 5% contents as cotton coming from polyester cotton (65:35) blended yarn and has alleged that 15% polyester contents is not entirely from imported polyester filament yarn but it also contains polyester coming from polyester cotton blended yarn. For example, in lot exported under shipping bill No.1492 dated 15.9.2000, the department has alleged that it contained 262.35 Kgs of cotton and out of the total polyester contents of 787.05 Kgs, quantity of polyester yarn coming from polyester cotton blended yarn is 487.22 Kgs and quantity of polyester yarn coming from polyester filament yarn is 299.83 Kgs. However, the appellants have claimed that entire polyester contents has come from polyester filament yarn and 'others' 5% contents i.e. 262.35 Kgs was polyester cotton blended yarn and not cotton yarn as alleged by the department. There is no chemical analysis report available on record to support the allegation leveled by the department. Demand in respect of above mentioned 20 lots has been confirmed only on assumptions and presumptions. 3. On further appeal by the Revenue, the Tribunal affirmed the view taken by the Appellate Authority. 4. We have heard learned counsel for the parties. 5. Learned counsel for the Revenue submits that the finding recorded by the Commissioner (Appeal) as well as the 3 CUSAP No.19 of 2010 Tribunal is based on unsatisfactory appreciation of material on record. Learned counsel for the Assessee submits that concurrent finding recorded by the appellate authority as well as the Tribunal is based on appreciation of evidence and cannot be held to be perverse. No material has been misread or ignored. Even if two views are possible, appeal cannot be entertained without there being a substantial question of law. 6. We have considered the rival submissions. We are unable to hold that the finding recorded by the appellate authority and the Tribunal is perverse. No substantial question of law, as proposed in the appeal, arises. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE July 22, 2010 ( AJAY KUMAR MITTAL ) ashwani JUDGE 4