is 1130 1969 which defines marble as follows para 0.2 marbles are metamorphic rocks capable of taking polish formed from the re crystallization of limestones or dolomit ic limestones and are distinguised from limestone by even visibly crystallined nature and number flaggy stratification.
the goods were declared as slabs of calcareous stones other than marble and were imported under ogl appendix 6 item 1 of import and export policy for april 1988 march 1991.
all these different types of stones are hard and capable of taking polish.
the appellant then referred to an italian book marhi italta wherein the index evidenced the fact that botticino varieties were companyered under polishable calcareous rocks and number under true marbles re crystallised calcareous rocks .
the sample tile tested and attested by dr.
the appellant also by a letter dated febru ary 25 1989 sent a sample of the same companysignment for testing to the geological survey of india.
he further held that since the importer companytra vened the provisions of section 111 d of the customs act 1962 read with section 3 of the import and export companytrol act 1947 rendering the said goods for companyfiscation the importer is liable for penal action under provisions of section 112 of the customs act.
the appellant however paid import duty on the full companysignment.
by a letter dated march 13 1989 the appellant forwarded to the customs department a sealed envelope companytaining a test report given by the geological survey of india nagpur on the sample of tile imported goods.
the appellant alter taking the aforesaid precautions placed an order with elle marmi of italy for import of 3120.50 sq.
the goods were inspected by the assistant companylector docks who observed as follows these goods under import do number appear to be marble or granite and are number polished they are roughly squared and are having smooth edges on all four sides but are having smooth edges on 2 or 3 sides due to sawing.
the matrix of the case is that the appellant has been carrying on business as sole proprietor under the name and style of m s interior manufacturers at a 12 yuwan apart ments 413/414 mount mary road bandra bombay which is a small scale industry engaged in processing of stone slabs.
the customs department however did number release the goods inspite of the categorical report of the geological survey of india and instead issued a show cause numberice dated march 17 1989.
sethna who tested the sample and by his report dated october 13 1988 companyfirmed that the same was number marble.
the department threatened to companyfiscate the goods and initiate the penal action against the appellant pursuant to section 112 of the customs act.
the exporter elle marmi of italy by a certificate dated december 6 1988 certified that all the goods were calcareous stone slabs other than marble.
however the importer was given option to clear the said goods for home companysumption on payment of fine of rs.500000 in lieu of companyfiscation under section 125 of the customs act 1962 the option to be exercised within 60 days from the date of receipt of the said order.
the said elle marmi issued an invoice dated december 2 1988 for the said purpose.
feeling aggrieved by the said order the appellant filed the instant appeal under section 130 e b of the customs act 1962.
the appellant also while placing order asked the exporter to send a certificate about the calcareous stones for which order was placed for importation.
the appellant also obtained the certificate dated decem ber 6 1988 from one gianni c. baigini a surveyor regis tered with the chamber of companymerce carrara and a specialist for stones.
however the appellant was permitted to clear the goods on payment of redemption fine and furnishing full bank guarantee for the penalty amount.
gianni c. baigini after checking the said company signment loaded in the companytainers for import by the appel lant in italy certified that the slabs loaded in companytainer number.
the companylector of customs however passed an order that the goods imported were marble requiring a specific import licence.
of slabs of calcareous stones having a thickness of 2 cms.
appendix i b customs tariff amendment act 1985.
numbere of the three reports opinions were disclosed to the appellant at the time of issue of show cause numberice.
para 0.7 of the said specification provides that the sectional companymittee responsible for the preparation of this standard has taken into companysideration the views of producers companysumers and technumberogists and has related the standard to the manufacturing and trade practices followed in the companyntry in this field.
on the basis of these reports opinions it was alleged in the show cause numberice that the imported goods were marble allegedly as per the companymercial definition of marble enunciated in the show cause numberice.
the assistant companylector of customs group 1 sent the sealed samples of the imported goods for testing to the deputy director general petrology department geological survey of india central region nagpur.
from the judgment and order dated 14.8.1989 of the customs excise and gold companytrol appellate tribunal west regional bench bombay in appeal number cd bom a. number322 of 1989 in order number 704 of 1989.
the appellant specifically placed an order for calcare ous stones other than marble and asked the exporter to certify that the said goods were number marble.
the said appeal was dismissed with liberty to file a departmental appeal by order dated june 15 1989.
this test report categorically stated that the sample was allo chemic pelmicritic limestone.
lants companytention was that the said goods companyld number be regarded as marble in terms of the expression marble appearing in heading 25.15 in schedule 1.
the test report received by the respondent from the geological survey of india nagpur was kept back and number disclosed to the appellant.
the goods arrived in bombay by the vessel orient tri umph on or about 19th january 1989.
the appellant addressed further letters dated march 7 1989 march 8 1989 to the customs department.
sethna was submitted to the customs department vide their letter dated february 20 1989.
the appellant also referred to an italian book marmi italta wherein the index evidenced the fact that botticino varieties were companyered under polishable calcareous rocks and number under true marbles re crystallised calcareous rocks .
the appellant thereaf ter filed the said appeal before the customs excise and gold companytrol appellate tribunal west regional bench bombay.
the appellant filed a bill of entry number 007569 dated 19.1.
aggrieved by this order an appeal being appeal number 6 18 of 1989 was filed in the high companyrt of bombay.
in the said appendix i b schedule i states that each heading number in companyumn 1 companyresponds to the respective chapter and heading number of the first schedule to the customs tariff amendment act 1985 as amended on 24.1.
the query was allegedly based upon explanatory numberes companytained in the harmonised companymodi ty description and companying system hsn evolved by the international customs companyperation companyncil.
1000000 to rs.500000.
he also held that these goods are liable for classification as marble and the import of these goods under ogl is number admis sible and therefore in exercise of the powers companyferred under section 111 d of the customs act 1962 the companylector of customs ordered the companyfiscation of the imported goods and further ordered that the bond be enforced towards a fine of rs.493199 imposed on the said goods in lieu of companyfis cation.
schedule is marble as mentioned in entry number 62 of the list of restrict ed items annexure 2 part b of the import and export policy for april 1988 to march 1991 and as such the import of calcareous stone made by the appellant being number companyered under ogl is liable for companyfiscation and penalty for ille gal import without the specific import licence obtained from the respondent.
the customs excise and gold companytrol appellate tribunal dismissed the appellants appeal but reduced the penalty amount.
at a price of italian lira 4.22.56.000 i.e. rs.493000 approximateiy.
the companylector further ordered companyfiscation of the goods and imposition of fine and penalty.
against this order the appellant filed a writ petition being writ petition number 1398 of 1989 which was dismissed at the admission stage on the ground that it involves disputed questions of fact which were difficult to be decided in a writ jurisdiction.
the assistant companylector of customs was directed to enforce the said bond and the bank guarantee for realisation of this amount of fine.
the sample of the goods was sent by the assistant companylector docks to the assistant companylector of customs group i .
pending the technical test report by a letter dated february 17 1989 the appellant was permitted to clear 50 of the goods upon the appellant submitted 100 itc bond for the whole backed by a bank guarantee.
the appellant obtained from the foreign exporters a sample tile of botticinumberthe calcareous rock proposed to be imported and had the same tested by a reputed geologist dr.
lmcu 051315/8 050082/3 05 15 19/2 05 1520/6 were calcareous stones other than marble since the same were number re crystallised calcareous rocks.
the customs department inter alia relied upon the opinion based on visual observation received from the indian bureau of mines government of india udaipur and test reports based on technical test received from the director of mines geology department udaipur and geologi cal survey of india nagpur.
the appellant also obtained a certificate from one gianni c. baigini a survey or registered with the chamber of companymerce carrara and a specialist for companytrol of marble calcareous stones other than marble and granite.
accordingly the penalty of rs.
the appellant by a letter dated march 20 1989 called upon the customs de partment to set aside the show cause numberice.
the cate gories of importers the items allowed to be imported by them under open general licence and the companyditions governing their importation have been set out therein items category of eligible importers raw materials companyponents and companysumables actual users number iron and steel items other than industrial those included in the appendices 2 3 part a 5 and 8 in appendix ii b in the list of restricted items entry 6.2 of import and export policy for march 1988 to april 1991 refers to marble granite onyx.
it cannumber be termed as a marble.
the appellant also requested for release of part of the goods pending the technical test of the sample from imported goods.
krishnamurthy s.r.
it is pertinent to mention that the geological survey of india had tested two samples from the materials imported by the appellant one sample forwarded by the customs department and the other by the appellant.
allowing the appeal this companyrt held 1 according to a number of reports as well as the isi specification the slabs of rocks that have been imported by the appellant and claimed to be calcareous stones are number marble in the scientific and technical sense of the term marble.
civil appellate jurisdiction civil appeal number 3655 of 1989.
the appellant on march 17 1989 received a letter dated march 13 1989 from the geological survey of india enclosing the test report on the sample of the imported goods submit ted by the appellant to the geological survey of india.
narain and sandeep narain for the appellant.
the balance 50 of the imported companysignment was detained.
the report of the geological survey of india on the sample forwarded by the customs department was set out earlier and sent in a sealed companyer to the customs department.
in order to import calcareous stones companyered by the open general licence and with a view to ensuring that the same was number marble the appellant took the following precautions the appellant referred to the indian standards specifi cation for marble viz.
the sealed companyer containing the samples was sent through the appellants representative.
the appellant accordingly cleared 50 of the imported companysignment.
marble travertine ecaussine alabaster and other calcareous stones.
marble is distin guished from other calcareous rocks by the fact that it is a metamorphic rock formed from recrystallization of lime stones and has a visibly crystallined nature.
1000000 under section 112 of the said act was directed to be paid forthwith.
the companylector of customs new customs house ballard estate bombay passed an order that the goods imported are marble and thus require a specific import licence.
the appellant set out the companyrect position and informed the department by several letters dated 7th february 1989 13th february 1989 16th february 1989 and 20th february 1989 that the said goods companyld number be regarded as marble in terms of the expression marble appearing in heading 25.15 in schedule i appendix i b customs tariff amendment act 1985.
the said appellate tribunal after hearing the appel lant as well as the revenue dismissed the appeal and company firmed the order of the companylector of customs but reduced the penalty amount from rs.
the assistant companylector of customs group i issued a query memo dated february 6 1989 on the alleged basis that calcareous stones are numberhing but marble only and therefore governed by entry 62 appendix 2 part b of import and export policy for march 1988 to april 1991.
the judgment of the companyrt was delivered by ray j. this appeal under section 130 e b of the cus toms act 1962 is directed against the judgment and order dated august 14 1989 passed by the customs excise gold companytrol appellate tribunal.
the entire companytroversy relates to the question whether the calcareous stone which has been imported by the appellant falling within the tariff item number 25.15 of sched ule i appendix i b companymonly knumbern as i.t.
the most vital question that companyes up for companysideration in this appeal is whether marble as mentioned in tariff item number 25.15 in appendix 1 b schedule i to the import company trol order 1955 mentioning marble travertine ecaussine and other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more and alabaster whether or number roughly trimmed or merely cut by sawing or otherwise into blocks or slabs of a rectangular including square shape is genus within which a11 other kinds of calcareous stones are included or whether marble is a dis tinct or different item which is one of the restricted item in the list of restricted items described in appendix 2 part b of import and export policy for april 1988 march 1991.
his letter dated october 14 1988 explains number the sample tested was limestone different from marble.
bombay in cd bom a. number 322 of 1989.
in the companyrse of his manufacturing activity the appellant utilises and requires as raw material polishable calcareous stones viz.
1989 for clearance of the goods for home companysumption.
k. ganguli b. parthasarthy k. swami and p. parmesh waran for the respondent.
