Delhi HC Refuses To Order Third Re-Test Of Shawls For Export, Says Decision Lies With Adjudicating Authority

The Delhi High Court has recently declined to direct a third re-test of goods under Customs proceedings, holding that such a request cannot be insisted upon at the mere instance of a party and that the decision lies within the discretion of the adjudicating authority, particularly where two test reports are already on record.

A bench of Justices Nitin Wasudeo Sambre and Ajay Digpaul dismissed a writ petition filed by an exporter seeking the quashing of a show cause notice and a direction for re-testing of seized shawls allegedly containing prohibited material.

The case arose after the petitioner sought to export shawls, samples of which were sent for laboratory analysis. The initial report issued by the Wildlife Institute of India concluded that the shawls contained hair of the Tibetan antelope, an endangered species whose use is prohibited.

Disputing the findings, the petitioner sought a re-test, which was permitted. However, the second report was inconclusive. Thereafter, the petitioner requested a third round of testing, which was rejected by the customs authorities, prompting the present petition.

Before the High Court, the petitioner argued that denial of a third re-test violated principles of natural justice and relied on a customs circular permitting re-testing in appropriate cases. It was contended that, in light of conflicting or inconclusive reports, further testing ought to be allowed.

The court, however, rejected the contention, observing that the relevant circular vests discretion in the adjudicating authority to order a second re-test only in appropriate circumstances and not as a matter of routine or at the mere request of a party.

“The fact remains that there are already two test reports on record and the circular vests discretion with the authority to call for the third test report at an appropriate stage.”

The bench noted that two test reports were already available on record and emphasised that it is for the adjudicating authority to evaluate the evidentiary value of such reports and arrive at an appropriate conclusion.

“The petitioner intends to have the third testing report, as he is expecting that the third testing report might come in his favour,” the Court observed, adding that even if such report is there, the report by itself cannot be accepted to be a final proof in the matter of concluding that, the shawls were not made out from a material which is otherwise banned item.

“In our opinion, it is for the adjudicating authority to appreciate the test reports and accept the test report with which it is convinced of.”

The court also took note of the delay, observing that the petitioner had sought the third re-test several years after the earlier reports, which indicated that the application was aimed at delaying the adjudication process.

As such, the Court dismissed the petition.

For Petitioner: Advocates Mir Akhtar Hussain, Sonia Goswami and Rakesh Kumar Pant

For Respondent: Advocates Premtosh K Mishra, CGSC with Shrey Sharma, Anubhav Upadhyay, Arpit Bamal