Holding

The Supreme Court held that the Tribunal erred in ignoring the explicit references in the show‑cause notices and the IRMRA test reports, and therefore set aside the Tribunal’s judgment and remanded the case for fresh determination.

Summary

The case concerned import of Styrene‑Butadiene Rubber (SBR) of the 1900 series, which the importer M/s Ballarpur Industries Ltd. declared as ‘Lutex‑701’ and ‘Lutex‑780’ in its Bills of Entry. The Commissioner of Customs issued show‑cause notices alleging mis‑declaration and demanding confiscation, anti‑dumping duty, interest and penalty, relying on test reports of the Indian Rubber Manufacturers’ Research Association (IRMRA) that identified the goods as SBR of the 1900 series, which are subject to anti‑dumping duty under Notification 100/2004. The Customs, Excise & Service Tax Appellate Tribunal (CESAT) set aside the notices, holding that the show‑cause notices did not disturb the classification claimed by the importer. The Commissioner appealed to the Supreme Court, contending that the Tribunal ignored the IRMRA reports and the explicit references in the notices. The Court held that the Tribunal’s findings were contrary to the record, as the notices clearly linked the goods to the anti‑dumping duty and the laboratory reports were material. Consequently, the Supreme Court allowed the appeals, set aside the CESAT judgment and remanded the matter to the Tribunal for fresh consideration. No order as to costs was made.

Issues considered

Whether the show‑cause notices sufficiently disclosed a basis to alter the classification of the imported goods from CTH 4002 1100 (Latex) to CTH 4002 1900 (SBR) for the purpose of levying anti‑dumping duty.
Whether the CESAT erred in setting aside the anti‑dumping duty demand by concluding that the notices did not disturb the classification.
Whether the laboratory test reports and the content of the show‑cause notices constitute material evidence that should have been considered by the Tribunal.

Legislation cited

Customs Act, 1962s. 111(m), s. 112(a), s. 118(a), s. 28AB
Customs Tariff Act, 1975s. 9A
Customs Tariff (Identification, Assessment and Collection of Anti‑dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995s. 23

Subjects

Anti-dumping dutyCustoms classificationShow cause noticeConfiscationMis-declarationStyrene Butadiene RubberLatexCustoms Act 1962Customs Tariff Act 1975Supreme CourtCESATRemand

Judgment

[2021] 9 S.C.R. 177 177

COMMISSIONER OF CUSTOMS, PUNE A
v.
M/S BALLARPUR INDUSTRIES LTD.
(Civil Appeal Nos. 5644-5645 of 2021)
SEPTEMBER 21, 2021 B
[DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND HIMA KOHLI, JJ.]

Anti-Dumping – Demand of anti-dumping duty on the product
‘Styrene Butadiene Rubber’ (SBR) – Two show cause notices dated C
23.05.2006 and 30.06.2006 were issued to the respondent alleging
that it had mis-declared its goods as ‘Lutex-701’ and ‘Lutex-780’,
and they were goods SBR of 1900 series on which anti-dumping
duty was leviable – Goods were confiscated and anti-dumping duty,
besides the levy of interest and penalty were imposed – The D
Commissioner of Customs held that: (i) the goods were leviable to
confiscation in terms of s. 111(m) of the Customs Act 1962; (ii) the
goods were chargeable to anti-dumping duty; and (iii) the respondent
was liable to pay interest u/s. 28AB and penalty u/s. 112(a) r/w.
s.118(a) of the Customs Act 1962 – However, the Customs, Excise E
& Service Tax Appellate Tribunal (CESAT) came to the conclusion
that the show cause notices could not be sustained – Before the
Supreme Court, the appellant-Commissioner of Customs contended
that the notice to show cause dated 23.05.2006 contained a specific
reference to the fact that the test report by the Indian Rubber F
Manufacturers’ Research Association (IRMRA) dated 06.03.2006
had revealed that the goods were found to be SBR of 1900 series
and since the goods originated in Korea R.P. they were subject to
anti-dumping duty and a similar averment was contained in the show
cause notice dated 30.05.2006 – Further, the test reports of the G
IRMRA which were sought by the respondent also contained a similar
finding that the goods which were imported were SBR of the 1900
series – Held: The Tribunal has set aside the decision of the

H
177
178 SUPREME COURT REPORTS [2021] 9 S.C.R.

A Commissioner of Customs on an evidently superficial evaluation of
the issues raised in the appeals – The Tribunal came to the
conclusion that there is “no whisper of any reason in the show
cause notice to disturb the classification” claimed by the importer
– This finding is contrary to the record – The show cause notice
B dated 23.05.2006 clearly states that the goods imported in question
were declared as ‘Lutex-701’ in import documents and, as per test
report from IRMRA goods were found to be SBR of 1900 Series –
Similar allegations were contained in the second show-cause notice
– Further, the Commissioner also recorded that the importer had
C also approached IRMRA independently for testing the samples of
Lutex 701 and 780 in their control – A similar finding was arrived
at by IRMRA from the samples furnished by the importer – None of
these findings were displaced in the order of the Tribunal – The
Tribunal has not looked into the merits of the appeals – The findings
D of the Tribunal are contrary to the record and cannot therefore be
sustained – Since, the Tribunal has not considered the case of the
respondent in appeal on merits, it would be appropriate to restore
the proceedings back to the Tribunal for the purpose – Accordingly,
the appeals are allowed and the judgment of the Tribunal is set
E aside.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5644-
5645 of 2021.

F From the Judgment and Order dated 27.09.2017 of the Customs,
Excise & Service Tax Appellate Tribunal, West Zonal Bench, at Mumbai
Final order No.A/90222-90223 of 2017 in Customs Appeal No. C/70/
17-MUM and C/71/07.

Ms. Aishwarya Bhati, ASG, Mukesh Kumar Maroria, Ms. Aruna
G
Gupta, Ms. Deepanwita Priyanka, Mohd. Akhil, Ms. Vishakha, Advs.
for the Appellant.

Surender Kumar Gupta, Neeraj, Chitvan Singhal, Prashant Rawat,
Advs. for the Respondent.
H
COMMISSIONER OF CUSTOMS, PUNE v. M/S BALLARPUR 179
INDUSTRIES LTD.

The Judgment of the Court was delivered by A
DR DHANANJAYA Y CHANDRACHUD, J.
1. Admit.
2. These appeals by the Commissioner of Customs, Pune arises
from a judgment of the Customs, Excise & Service Tax Appellate Tribunal B
(“CESAT” or the “Tribunal”) dated 27 September 2017. The question
of law which has been formulated in the appeals is whether the Tribunal
erred in setting aside the demand of anti – dumping duty on the product
‘Styrene Butadiene Rubber’ (“SBR”) classified under the heading 4002
of the First Schedule of the Customs Tariff Act, 1975and imported from
Korea. C

3. A show cause notice1 dated 23 May 2006 was issued to the
respondent covering five Bills of Entry under which the product ‘Lutex
-701’ was imported namely:
“(1) Bill of Entry No. 500271 dated18.03.05; D
(2) BilI of Entry No. 500044 dated03.05.05;
(3) Bill of Entry No. 500110 dated13.06.05;
(4) Bill of Entry No. 500161 dated1 7.08.05; and
(5) Bill of entry No. 500162 dated17.08.05.” E
Another show cause notice2 dated 30 June 2006, covering six
Bills of Entry’ was issued to the respondent under which the product
‘Lutex – 780’was imported. The details of the Bills of Entry are:
“(1) Bill of Entry No. 500183 dated26.08.05;
F
(2) Bill of Entry No. 500034 dated27.04.05;
(3) Bill of Entry No. 500073 dated24.05.05;
(4) Bill of Entry No. 500109 dated13.06.05;
(5) Bill of Entry No. 500148 ·dated28.07.05; and
G
(6) Bill of Entry No. 500128 dated29.06.05.”
4. The allegation in the Show Cause Notice dated 23 May 2006 is
that the respondent mis-declared its goods as ‘Lutex – 701’ which on
1
Show Cause Notice F.No. ICD/Pimp- C’wad/BE-737/05-06 dated 23.05.2006.
2
F.No. ICD/Pimp-Chwd/SCN/204/06-07 dated 30.06.2006. H
180 SUPREME COURT REPORTS [2021] 9 S.C.R.

A tests were found to be SBR of 1900 series on which anti-dumping duty
was leviable. The notice proposed to confiscate the goods imported,
collectively valued at Rs.1,19,16,267/- under Section 111(m) of the
Customs Act 1962; to demand anti-dumping duty of Rs.10,14,101/-
;besides the levy of interest and penalty. The Show Cause Notice dated
30 June 2006 alleged a similar mis-declaration of the goods declared as
B
‘Lutex 780’. Confiscation of the goods collectively valued at
Rs.2,10,57,783/- was proposed besides the demand of anti-dumping duty
of Rs.16,88,618/-, the levy of interest and penalty.
5. The Commissioner of Customs, Pune by orders dated 17
October 2006, held that:
C
(i) The goods were leviable to confiscation in terms of Section
111(m) of the Customs Act 1962;
(ii) The goods were chargeable to anti-dumping duty; and
(iii) The respondent was liable to pay interest under Section
D 28ABand penalty under Section 112(a) read with Section
118(a) of the Customs Act 1962.
6. Appeals were filed before the CESAT by the respondent against
the decision of the Commissioner. The CESAT allowed the appeals by
its order dated 27 September 2017and came to the conclusion that the
E Show Cause Notices could not be sustained.
7. The Tribunal has allowed the appeals on the basis of two
findings. The first finding is as follows:
“There is no whisper of any reason in the show-cause notice to
disturb the classification claimed by the appellant. Therefore, the
F
classification of the imported declared by the appellant under CTH
40021100 remained untouched by this order. Anti- dumping
notification indicates that the goods falling under customs heading
Nos.3903 and 4002 of the first schedule to the Customs Tariff
Act, 1975 were subject to levy of anti-dumping duty. Accordingly,
G levy was confined to the goods of heading 4002.19 since anti-
dumping investigation was confined tothe goods covered by
heading 4002.19.
Therefore there cannot be any misconception about the product
under consideration. Notification no.2004-Cus dated 26.09.2004
H was issued pursuant to sunset Review arising out of the final
COMMISSIONER OF CUSTOMS, PUNE v. M/S BALLARPUR 181
INDUSTRIES LTD. [DR DHANANJAYA Y CHANDRACHUD, J.]

findings of the designated authority made on 02.06.1999. That A
Authority confined his scope of investigation into the goods covered
by above tariff heading in the Sunset Review which was subject
matter of levy of definitive duty. Therefore pleading of the appellant
that its goods having fallen under CTH 40021100 does not come
under CTH 40021900 for levy of anti dumping duty for the reason
B
that goods of CTH 4002 1100 were not subject matter of
antidumping investigation at any stage.”
The second finding is as follows:
“It may be stated that while issuing show-cause notice, learned
adjudicating authority had not examined the classification based C
on the report of the Laboratory. The show-cause notice issued in
2006 was to finalise the assessment only, without any proposal to
levy anti-dumping duty. There was no reference to the character
and nature of the imported product also therein. The Notification
No.100/2004-Cus dated 26.09.2004 does not intend to levy anti-
dumping duty on the product imported by the appellant. D
Accordingly, the show cause notice having no basis, both the
appeals are allowed.”
8. The Commissioner of Customs, Pune is in appeal.
9. Before we deal with the submissions which have been urged E
on behalf of the contesting parties, it is necessary to preface this judgment
with a reference to Notification 100/2004-Cus dated 28 September
2004.The Notification sets outthat on 30 July 2003 the Designated
Authority had initiated a sunset review in the matter of continuing anti-
dumping duty on imports of SBR 1900 series falling under heading 3903
or 4002 of the First Schedule to the Customs Tariff Act 1975 (referred F
to as the “subject goods”) originating in or exported from Japan, Korea
R.P. and the United States of America. The anti-dumping duty had been
imposed by the Government of India in the Ministry of Finance
(Department of Revenue), by Notification No.73/2000-Customs dated
22 May 2000. By a communication dated 29 April 2004, the continuation G
of the anti-dumping duty for an additional period for six months was
requested pending the completion of the review. The Central Government
had extended the anti- dumping duty on the subject goods originating in
or exported from the above countries by a Notification dated 26 July
2004, for an additional period of six months up to and inclusive of 25
H
182 SUPREME COURT REPORTS [2021] 9 S.C.R.

A October 2004. On a sunset review, the Designated Authority had rendered
its findings on 27 July 2004 coming to the conclusion that:
“(i) subject goods, originating in or exported from subject countries
has been exported to India below normal value, resulting in
dumping;
B (ii) the domestic industry is suffering material injury;
(iii) dumping of subject goods is continuing from the subject
countries; and
(iv) the material injury to the domestic industry may continue and
C intensify if anti-dumping duty is removed.”
Hence, in exercise of the powers conferred by sub-sections (1)
and (5) of Section 9A of the Customs Tariff Act 1975 read with Rule 23
of Customs Tariff (Identification, Assessment and Collection of Anti-
dumping Duty on Dumped Articles and for Determination of Injury)
D Rules 1995, the Central government imposed an anti-dumping duty as
specified in the following table:

E

F

G

H
COMMISSIONER OF CUSTOMS, PUNE v. M/S BALLARPUR 183
INDUSTRIES LTD. [DR DHANANJAYA Y CHANDRACHUD, J.]

Chapter 40 of the Customs Tariff Act 1975 is titled ‘Rubber and A
articles thereof’. Tariff item 4002 and its relevant entries are given below:
4002 Synthetic rubber and factice dervied from oils, in primary forms or in
plates, sheets or strip; mixtures of any product of heading 4001 with
any product of this heading, i n primary forms or in plates, sheets or
strip
- Styrene butadiene rubber (SBR); carboxylated styrene-butadiene
rubber (XSBR)
B
4002 11 00 - Latex kg. 10%

4002 19 - Other

4002 19 10 - Oil extended styrene butadiene rubber kg. 10%

4002 19 20 - Styrene butadiene rubber with styrene content exceeding 50% kg. 10%

4002 19 30 - Styrene butadiene styrene oil bound copolymer kg. 10% C

10. The respondent contends that its goods were classified under
CTH 40021100 and were provisionally cleared. The respondent submits
that the assessment was finalized by the order of the Commissioner of
Customs, levying anti-dumping duty without there being any proposal in
the show cause notice for change in the classification. The Revenue D
contended that anti-dumping duty was imposed in terms of Notification
No.100/04 – Customs dated 26 September 2004 and anti-dumping duty
was correctly levied on the goods.
11. In the present proceedings, there is no dispute about the position
that the product under consideration of the Designated Authority was E
SBR of 1500, 1700 and 1900 series falling under CTH 4002.19 of the
Customs Tariff Act 1975 but not goods covered by the CTH 40021100.
The Tribunal, as is evident from the two extracts of its decision which
have been reproduced earlier came to the conclusion that:
(i) No basis was indicated in the show cause notice to disturb F
the classification claimed by the respondent as the result of
which the declaration by the respondent that the goods fell
under CTH 40021100 “remained untouched”; and
(ii) While issuing the notice to show cause, the adjudicating
authority had not examined the classification based on the G
Laboratory report.
12. Ms Aishwarya Bhati, Additional Solicitor General appearing
on behalf of the appellant submits that both the underlying findings of the
Tribunal are flawed for the following reasons:
H
184 SUPREME COURT REPORTS [2021] 9 S.C.R.

A (i) The notice to show cause dated 23 May 2006 contained a
specific reference to the fact that the test report by the Indian
Rubber Manufacturers’ Research Association (“IRMRA”)
dated 6 March 2006 had revealed that the goods were found
to be SBR of 1900 series and since the goods originated in
Korea R.P. they were subject to anti-dumping duty;
B
(ii) A similar averment was contained in the show cause notice
dated 30 May 2006;
(iii) The test reports of the IRMRA which were sought by the
respondent also contained a similar finding that the goods which
C were imported were SBR of the 1900 series;
(iv) The Commissioner had specifically considered and placed
reliance on the tests reports of IRMRA; and
(v) The finding of the Tribunal that the notice to show cause did
not refer to the classification purportedly made by the importer
D in the Bills of Entry is belied by the contemporaneous record.
13. On the above premises it has been submitted that the test
reports which were commissioned both by the department as well as the
importer from IRMRA indicated that the goods imported were SBR and
there is no challenge to these reports. In the circumstance, it has been
E urged that the Tribunal had ignored material evidence on the record
warranting the interference of this Court in appeal.
14. On the other hand, Mr Surender Kumar Gupta, learned Counsel
appearing on behalf of the respondent urged that:
(i) The explanation provided by the respondent in the reply to
F
the notice to show cause was to the following effect:
“3.4 SBR of 1900 series is essentially a dry polymer
The Test Report of the Deputy Chief Chemist itself describes
the sample tested as:
G ‘’the samples is in the form of white liquid. It is an aqueous
emulsion of styrene butadiene .......... “ (Kindly refer to
Annexure 8)
The goods imported by us, which exists in a liquid form, are
widely used in the paper industry and known in common trade
H
COMMISSIONER OF CUSTOMS, PUNE v. M/S BALLARPUR 185
INDUSTRIES LTD. [DR DHANANJAYA Y CHANDRACHUD, J.]

parlance as Latex. Unlike the former, SBR of the 1900 series A
is a dry polymer, which is incapable of existing in a liquid form.
Unlike Latex, SBR of 1900 series has wide application in the
footwear industry and in the manufacture of “V” Belts. Thus
the two products are completely different in their physical state
or applicability though there are certain common chemicals in
B
their chemical composition.”
(ii) Moreover, according to the respondent, in its reply:
“3.8 Latex and SBR of 1900 are two separate products-
As mentioned above, the product imported by us is “Styrene
Butadine Co-polymer”. The goods imported by us, which exists C
in a liquid form, are widely used in the paper industry and
known in common trade parlance as Latex. Kindly note that,
SBR of the 1900 series is a dry polymer, which is incapable of
existing in a liquid form. Unlike Latex, SBR of 1900 series has
wide ·application in the footwear industry and in the D
manufacture of “V” Belts.”
In other words, while SBR of the 1900 series is a dry polymer, the
goods imported by the respondent were in a liquid form andhence,
according to the respondent, fall for classification under CTH 40021100
as Latex. In this context, reliance was sought to be placed on the E
Vanderbiit Rubber Handbook and an opinion obtained from the University
of Mumbai. On the above premises, it was submitted that the goods
which were imported fall under CTH 40021100. It was urged that the
literature indicates that goods imported in a liquid form would fall for
classification as Latex and the opinions of experts demonstrate that the
Styrene content is not decisive on whether or not the goods would fall F
for classification as Latex.
15. The Tribunal has set aside the decision of the Commissioner
of Customs on an evidently superficial evaluation of the issues raised in
the appeals. The Tribunal came to the conclusion that there is “no whisper
of any reason in the Show Cause Notice to disturb the classification” G
claimed by the importer.This finding is contrary to the record. Paragraph
3 of the Show Cause Notice dated 23 May 2006 is extracted below:
“3. Whereas, as per the test report No: RPT/0502588rt14478/205
dated. 03.03.2006and Ref. No: IRMRA/RK/03-06/23-RD
dated06.03.2006 (copy enclosed) received from Indian Rubber H
186 SUPREME COURT REPORTS [2021] 9 S.C.R.

A Manufacturers Research Association (IRMRA), the sample goods
found as STYRENE BUTADIENE RUBBER of 1900 series.
As per Anti-dumping duty Notification No:. 100/2004 dated
28.09.2004, the goods i.e. STYRENE BUTADIENE RUDDER
of 1900 series falling under heading 3903 or 4002 of the First
Schedule to the Customs Traffic Act 1975, originated in, or exported
B
from, Korea R.P. are chargeable to Anti-dumping Duty @ US $
0.0689 per Kg. In view of the fact that the goods covered under
five Bills of Entry referred as above ·are found as STYRENE
BUTADlENE RUBBER of 1900 series as confirmed by IRMRA
Test Report dated 06.03.2006 and the goods are of Korea R.P.
C origin, the goods become chargeable to Anti-dumping duty @ US
$ Q.0689 per kg as per Notification No: 100/2004 dated·
28.09.2004.”
Paragraph 4 of the Notice contains similar allegations that:
“4. Whereas the goods imported in question were declared as
D ‘LUTEX 701’ in import documents and, not as ‘Styrene Butadiene
Rubber (SBR) of 1900 Series which has been confirmed by Test
Report dated 06.03.2006 from IRMRA. The importer is regular
importer of subject goods and are actual users of the goods and
therefore they should be well aware of the description of the goods
E imported and the duty liability thereon. Therefore it appeared that
the Importer mis declared the description of the goods as TUTEX
701 instead of as Styrene Butadiene Rubber (SBR) of 1900 Series
with the intention to evade the Anti Dumping Duty. At the time of
filing of Dills of Entry, the Importer did not come up with full a.id
complete description of the goods imported. If the Importer had
F declared the complete and proper description of the. goods at the
time of filing of Bills of Entry, the Anti Dumping duty would have
been levied at the time of provisional assessment. Therefore it
appears to be a case of suppression of facts on the part of the
Importer by not declaring proper description of the goods and mis
G declaring the description of the goods as’LUTEX-701' against
proper description as4 Styrene Butadiene Rubber (SBR) of 1900
Series. As importer is an actual user of the goods ii question and
was aware of the Anti Dumping duty notification no: 100/2004
issued on 28.09.2004 at the time of filing of import documents, it
appears that the importer willfully did not declare the proper
H
COMMISSIONER OF CUSTOMS, PUNE v. M/S BALLARPUR 187
INDUSTRIES LTD. [DR DHANANJAYA Y CHANDRACHUD, J.]

and complete description of the goods in import documents with A
the intention to evade the Anti dumping duty.”
A similar allegation was contained in the second show cause notice.
The Commissioner of Customs specifically dealt with the contents of
the test reports in paragraph 6.2of the order dated 17 October 2006,
which is extracted below: B
“6.2 As has been extracted at paras 4 and 5 supra, the said Importer
has heavily argued that the Test Reports of IRMRA are
Inconclusive and have sought for the cross examination of the
official of the IRMRA. For the reasons recorded here under, I
am not persuaded by these arguments of the said Importer. As C
per the facts, it may be seen that, initially, samples of Lutex 701
and Lutex 780 were drawn for tests to be done by the Dy. Chief
Chemist, CCRL Nhava Sheva to ascertain (1) composition (2).
percentage of Styrene, and (3) whether the goods are Styrene
Butadiene Rubber of 1900 series. The Dy. Chief Chemist CRCL
vide his report dated 30th June, 2005, for the product, Lutex 701, D
informed that “the samples In the form of white coloured liquid. It
Is an aqueous emulsion based on synth1tic resin - Styrene
Butadiene type solid contents = , 54.5°/o. For content of Syrene,
sample may be forwarded tosome rubber testing laboratory”
Similarly, In his report dated 5th July, 2005, relating to the samples E
of Lutex 780 it was informed by the Dy. chief Chemist, CRCL,
that “The· sample is in the form of white liquid. It. is an aqueous·
emulsion of Styrene Butadiene, For content of Styrene, sample
may be forwarded to rubber testing laboratory;”
16. The Commissioner also recorded in paragraph 6.4 that the F
importer had also approached IRMRA independently for testing the
samples of Lutex 701 and 780 in their control. A similar finding was
arrived at by IRMRA from the samples furnished by the importer.
Paragraphs 6.4 of the decision of the Commissioner reads as follows :
“6.4 It may be pertinent to again mention here that the said Importer G
themselves had also approached the IRMRA for an independent
testing of the samples of Lutex 701 and Lutex 780 which were in
their control and the said IRMRA, vide their Evaluation Report
dated 14.09.2006, for the same goods under the control of the
said Importer and which are also covered under the First Notice
H
188 SUPREME COURT REPORTS [2021] 9 S.C.R.

A and the Second Notice conveyed the results thereof to the said
Importer wherein the Styrene content was observed to be 64.44%
and 66.75% respectively for Lutex 701 and Lutex 780.”
In this background, the Commissioner held:
“6.5 Thus, It may be seen that when the said Importer got the
B Impugned goods tested on his own from the same laboratory where
the department had sent the goods for ascertaining the Styrene
content, in the imported Lutex 701 and Lutex 780, the styrene
content was reported to be above, 60%.”
None of the above findings have been displaced in the order of
C the Tribunal. The Tribunal has not looked into the merits of the appeals
at all on the facetious ground that the show cause notice did not contain
any basis to doubt the classification of the goods and that while issuing
the notice, the adjudicating authority had not examined the classification
based on the report of the laboratory. The findings of the Tribunal are
D contrary to the record and cannot therefore be sustained.
17. At the same time, since the Tribunal has not considered the
case of the respondent in appeal on merits, we are of the considered
view that it would be appropriate to restore the proceedings back to the
Tribunal for the purpose. In order to facilitate a fresh decision on remand,
E we have recorded the broad submissions of the contesting parties on the
merits as well but leave open the matter for evaluation by the Tribunal
on remand. We accordingly allow the appeals and set aside the judgment
of the Tribunal dated 27 September 2017. Appeal Nos. C/70 & 71/07
arising out of the orders in Original No.II/Cus/2006 and 12/Cus/2006
both dated 17 October 2006 of the Commissioner of Customs, Pune are
F restored to the file of the Tribunal for determination afresh.
18. The appeals are disposed of in the above terms with no order
as to costs.

G Ankit Gyan Appeals disposed of.

H