Arun Kumar, J. - (1.) This civil appeal under Section 138E of the Customs Act, 1962 is directed against an order dated 24-8-2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as "CEGAT").
(2.) Briefly the facts are that the appellant is engaged in the manufacture of acrylic sheets. The appellant imported raw material for its said manufacturing activity from Japan. The raw material is known as Methyl Methacrylate Monomer (regenerated) (for short MMM). A contract in this behalf was entered into by the appellant on 17-3-1996 with a Hongkong firm for supply of 106.40 metric tonnes of MMM regenerated second grade at the rate of US $ 300 per metric tonne CIF. The goods had been dispatched vide a Bill of Lading dated 29-5-1996. The Invoice and Packing List both dated 18-6-1996 accompanied the con-signment. The Bill of Lading mentions the words "RMA" i.e. Regenerated Methyle Methaedylete. Likewise in the invoice as well as in the packing list it is stated that the goods were MMM regenerated second grade. The invoice further mentions quantity of goods as 106.40 metric tonnes and price at the rate of US $ 300 per metric tonne. The said goods were cleared at ICD Ludhiana. Since the Department was not accepting the declaration regarding quality of goods there was difficulty in clearance as a result of which provisional clearance was allowed. Import duty was paid as per the declared price of the goods in the invoice while a bank guarantee was furnished for the test of the amount by the importer. Fifteen samples were taken and sealed in the presence of both sides at the time of delivery of the goods. Out of fifteen samples, four were given to the importer, one sample was sent by the department to the Central Revenue Control Laboratory (CRCL for short). Ten samples were retained by the department. A show cause notice dated 3-7-1997 was issued by the Commissioner of Customs to the appellant to which the appellant sent reply on 5-12-197. In the show cause notice the department set up a case of misdeclaration of goods resulting in the declared value of the goods being kept low. According to the department the goods were not regenerated second grade MMM, but were of prime quality. The price of prime quality was stated to be US $ 1700 per metric tonne. This stand was taken by the department mainly on the basis of a test report dated 22-7-1996 said to have been obtained from the CRCL, New Delhi which reads as under : "The sample is in the form of colourless liquid and has the characteristics of methyl methacrylate monomer. The physico chemical properties of the same in respect of boiling point, refractive index, specific gravity and purity are in agreement with that of chemically pure methyl methacrylate monomer in the literature."
(3.) This report does not indicate whether the goods could be said to be regenerated second grade MMM. Since the report was not very clear, the CRCL was requested by the department vide letter dated 17-5-1997 to specify "whether the material can be described as Methyl Methacrylate Monomer regenerated second grade or virgin grade". The CRCL responded to the above vide its letter dated 23-5-1997 as under : "Keeping in view of physico chemical properties, the samples under reference do not have any basis to be considered as methyl methacrylate monomer regenerated second grade." ;