JUDGMENT K.S. Jhaveri, J. - In both these appeals common question of law and facts are involved hence they are decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the tribunal [2016 (334) E.L.T. 686 (Tri. - Del.)] whereby tribunal has dismissed the appeals of the assessee. 3. Counsel for the appellant has framed following substantial questions of law :- Appeal No. 2/2016 : "(I) Whether imposition of safeguard duty under Notification No. 71/2009, dated 19-6-2009 is justified when the manufactures certificate reflected 6 microns as the thickness at the time of export recognizing the concept of transaction value as per provision of Section 14 of the Customs Act, 1962 read with WTO Valuation Agreement (Earlier GATT Valuation Code)? (II) Whether CRCL (Central Revenue Control Laboratory) reports which are more than 200% contradictory to each other on the same sample, given by Chemical Officer of Grade-II without any rhyme or reason in the case of metal thickness can be relied upon as a sole evidence contradictory to report of approved Laboratory? (III) Whether non-grant of tolerance limit factor in the micron calculation as fixed by BIS (Bureau of Indian Standards) makes the report unreliable specially when there are contradictory results of highest order-in-the different reports? (IV) Whether non-grant of cross-examination of CRCL Chemical Examiner and other report writers makes the order violative of principles of natural justice specially when the reports were non-speaking, drawn by non-experts and were relied upon solely in confirming the demand?" Appeal No. 1/2016 : "(I) Whether imposition of personal penalty under section 114A of the Act and other provisions of Customs Act is justified when there is no positive ingredients and attempt on the part of appellant to suppress, misstate, fraud, collude with intention to evade payment of duty? (II) Whether simultaneous penalty on the importer company and for imposition of personal penalty on its Director who is an employee is justified in the facts and circumstances of the case?" 4. The facts of the case are that the appellant is mainly engaged in the manufacture of Aluminium Foils, Lamination and printing thereon. The appellant imported the consignment of 103924.50 kgs vide invoice No. 00317283, dated 29-7-2009 and filed the Bill of Entry No. 082, dated 28-8-2009 (wherein the value of Rs. The facts of the case are that the appellant is mainly engaged in the manufacture of Aluminium Foils, Lamination and printing thereon. The appellant imported the consignment of 103924.50 kgs vide invoice No. 00317283, dated 29-7-2009 and filed the Bill of Entry No. 082, dated 28-8-2009 (wherein the value of Rs. 1,66,38, 696/- was declared) along with the relevant invoice, packing list issued by the exporter M/s. Jiangsu Zhongji Lamination Material Co. Ltd., Jiangsi Province, China and Certificate or Origin No. CCPIT 093930424 issued by the Chinese Authorities. 4.1 The Cargo related to said Bill of Entry No. 082, dated 28-8-2009 was examined by the Customs Officers on 3-9-2009 and on examination, quantitites of the goods were found as per Bill of Entry, Invoice & Packing List. As the thickness of the Aluminium Foil in micron could not be ascertained by visual inspection of the imported material, therefore, to ascertain the actual thickness of the Aluminium Foil in micron, samples were drawn and sealed with Customs seal in the envelop and Test Memo No. 49/2009-10, dated 3-9-2009 was prepared. Further, the goods were released to the importer on furnishing of a Bond dated 2-9-2009 giving therein, an undertaking, for payment of differential duty, if any arise, after receipt of test report. The samples of imported goods i.e. Aluminium Foils drawn vide Test Memo No. 49/2009-10, dated 3-9-2009 were submitted by the department with the Central Revenue Control Laboratory, New Delhi for ascertaining the thickness of Aluminium Foils. The Chemical Examiner of Central Revenue Control Laboratory, New Delhi vide letter F. No. 35-Customs/2009-IG, dated 6-10-2009 forwarded the test result carried out under C. No. 135/CRCL/CL-3752/IMP/17-9-2009 stating categorically that the sample was cut piece of Aluminium Foil having average thickness of 14.4 and 7.4 micron. 4.2 The department issued a Show Cause Notice C. No. VII(H)10/6/ADJ/10/1849-1853, dated 25-2-2010 demanding therein the safeguard duty of Rs. 49,91,609 @ 30% on assessable value, chargeable under Notification No. 71/2009-Customs, dated 19-6-2009 on Aluminium Foil having thickness of 7 or more Micron imported vide said Bill of Entry. 5. Counsel for the appellant has taken us to the record more particularly the order-inoriginal wherein it has been observed as under :- 10. 49,91,609 @ 30% on assessable value, chargeable under Notification No. 71/2009-Customs, dated 19-6-2009 on Aluminium Foil having thickness of 7 or more Micron imported vide said Bill of Entry. 5. Counsel for the appellant has taken us to the record more particularly the order-inoriginal wherein it has been observed as under :- 10. In defence, the Importer submitted reply vide letter dated PGF/IMP/09-10/5649, dated 8-3-2010 wherein, inter alia, it has been contested that :- They have received the notice alleging not paying safeguard duty premilinarily issued on the basis of CRCL report dated 6-10-2009. For the first time they are in receipt of the said test report issued by chemical examiner supported by test Memo on the overleaf of which the relevant report is written without any reason or rhyme the qualification of the examination appears to be chemical examiner that too of grade II having knowledge about metals like aluminium. They do not accept the said report as neither it is specifying any reason nor method of arriving at the same. As per enclosed applications made to relevant officers at the importing port in spite of deposition of appropriate fee till date they are notable to see the result of test report (correspondence in this regard is enclosed herewith). The imported product in question is aluminium foil of very fine thinness, which is beyond measurement by naked eyes and has to be measured in the unit namely Micron by the help of sohisticated machine in non-humid controlled temperature by the experts on a untouched, fresh and virgin sample without any exposure to external environment, it is noteworthy to mention that the test can be conducted by some experts with metallurgical background. They are in this industry since long and have gathered good experience as such they are certain that some where some mistake has crept in because such vast variation are just not possible. They enclosed copy of test report issued by M/s. Specto Analytical Labs on the sample provided by them. 11. The importer again vide letter Number PFG/IMP/5929, dated 27-3-2010 submitted reply in their defence, wherein inter alia, it has been contested that :- The noticee is manufacturer of Aluminium Foils and for the said purpose they have imported Aluminium Foils vide BOE No. 82, dated 28-8-2009 through ICD, Jodhpur. 11. The importer again vide letter Number PFG/IMP/5929, dated 27-3-2010 submitted reply in their defence, wherein inter alia, it has been contested that :- The noticee is manufacturer of Aluminium Foils and for the said purpose they have imported Aluminium Foils vide BOE No. 82, dated 28-8-2009 through ICD, Jodhpur. The said goods were imported from Peoples Republic of China on which vide Notification No. 71/2009, dated 19-6-2009 w.e.f. 23-3-2009 safeguard duty @ 30% was imposed on the import o Aluminium Foils classifiable under Chapter Heading 7607 having thickness of 7 or more microns. On 28-8-2009, while conducting examination of the cargo under the Bill of Entry the officers of Customs were not able to ascertain the micron size of the imported goods and therefore, a test memo was drawn which was sent to Central Revenue Laboratory, Pusa Road, New Delhi. The said test result carried out on 17-9-2009 mesured the microns thickness as 14.4 microns and 7.4 microns and hence duty to the tune of Rs. 49.91 lacs was raised by way of the show cause notice dated 25-22010. While framing the show cause notice in Para 8, it is an admitted fact that vide their letter dated 21-11-2009 disagreement to the test report has been contended and retesting has been requested, but the said request has neither been dealt with or answered in the show cause notice nor thereafter. Again vide their letter dated 8-3-2010 they have requested for retesting of the goods from a reputed laboratory or CRCL but no response received. From their side they have supplied an opinion of the said bill of entry showing the contents of microns to be less than 7. In the facts and circumstances, they are not able to ascertain the method of conducting of test report, the test is carried by a grade-II Chemist and not by a Metallurgical person and the report is not reflecting a single reason. It is neither acceptable nor legally sustainable. Therefore, they requested to again send the sample for retesting. In order to prove that CRCL report is neither a report nor made by a metal experts, non-speaking in nature and cannot be relied upon they submitted that there is sea change in the original and revised report in the case of identical material of the same supplier of same party against BOE Nos. In order to prove that CRCL report is neither a report nor made by a metal experts, non-speaking in nature and cannot be relied upon they submitted that there is sea change in the original and revised report in the case of identical material of the same supplier of same party against BOE Nos. 82 and 86 vide report dated 28-82009 and 7-9-2009 which is as mentioned below :- Bill of Entry No. Original report Revised Report 82, dated 28-8-2009 14.70 Micron 7.40 Micron 7.02 Micron 7.04 Micron 86, dated 79-2009 7.40 Micron 6.31 Micron, 6.50 Micron and 6.53 Micron 6.31 Micron, 6.50 Micron and 6.53 Micron M/s. Kunshan Aluminium Foil Limited has confirmed that from last one and half year they are exporting only below 7 Micron Aluminium Foil to India. They are not only exporting to them but to many more parties in India and confirmed that no party has reported them that their material is more than 7 micron (copy of the letter and list of Importer was enclosed). Recently, they have Imported Aluminium Foil at Delhi Port from M/s. Kunshan Aluminium Co. Ltd. and testing of the same has been done by Shri Ram Institute which shows that material is less than 7 micron. So from the above supporting it is clear that they have imported less than 7 micron Aluminium Foil only as party is exporting only that type of material to India and CRCL report on the same is misleading and cannot be relied upon. Vide their letter dated 8-10-2010 to the Deputy Commissioner of ICD they have requested for sending the goods under test memo for calculation of Micron to the experts like Shri Ram Institute, Delhi who are having expertise and Infrastructure in the similar field, at their cost from the samples drawn by the department. The said request has yet not been considered but instead a show cause notice and final assessment order is being issued to them by revenue in a biased manner. Therefore, in the interest of justice, they requested to send the samples to appropriate body to get the real results. The said request has yet not been considered but instead a show cause notice and final assessment order is being issued to them by revenue in a biased manner. Therefore, in the interest of justice, they requested to send the samples to appropriate body to get the real results. 5.1 He also taken us to the order of the Commissioner (Appeals) wherein it has been held as under :- 3.4 That if the report given by the Shri Ram Institute for Industrial Research, Delhi is considered then also by applying the said telerance limit the material which was tested certainly comes to less than 7 Micron. Therefore, requested to quash the impugned order in the light of above submissions and further the principles of natural justice were not followed in the instant case because the Authority who issued the report was not examined by the Adjudicating Authority in a case, where there were not only chances of variation but the variation established in the reports given regarding thickness of questioned Aluminium Foils. If the examination was done then certainly the question of telerance (+) or /(-) of 8% were decided at that time from the experts opinion. Therefore it is requested to provide the opportunity for examination of the expert who had given the reports either from CRCL, New Delhi or from Shri Ram Institute for Industrial Research, Delhi and also grant the permission for examination of the analyst of M/s. Spectro Analytical Labs Limited, New Delhi who had given the report of questioned Aluminium Foils as less than 7 micron, so that, the true position can be ascertained and justice may be imparted to the appellants against whom not only the safeguard duty has been imposed but penal action has also been taken. The basic requirement of the principles of natural justice is that there must be fair play in action and in the instant case there was no fair play as the Adjudicating Authority did not consider the vital and basic aspects before reaching to such conclusions in the impugned order. The Hon''ble Tribunal in the case of Ultra Fine Fillers (P) Ltd. vs. CE, JAIPUR-II - 2004 (167) E.L.T. 331 (Tri.-Del.) held that assessee has a right to cross-examine the chemical examiner whose report relied by Department in deciding classification against assessee. The Hon''ble Tribunal in the case of Ultra Fine Fillers (P) Ltd. vs. CE, JAIPUR-II - 2004 (167) E.L.T. 331 (Tri.-Del.) held that assessee has a right to cross-examine the chemical examiner whose report relied by Department in deciding classification against assessee. 5.2 He also taken us to the order of the Tribunal wherein the Tribunal has held as under :- 5. The only point for decision is whether or not the Aluminium Foils imported by the appellant/assessee is of thickness of 7 Micron or above in order to attract safeguard duty. The correctness of imposition of penalty on the appellant/assessee and two other individuals is also to be decided. 6. The admitted facts of the case are that the appellant/assessee imported Aluminium Foils from China and declared their thickness as 6 Micron. The samples were drawn and tested by CRCL and again retested on appellant''s/assessee''s request by the same laboratory. Again, as per insistence of the appellant''s/assessee''s request by the same laboratory. Again, as per insistence of the appellant/assessee, the test was done for the third time in another independent laboratory. It is to be noted that all these test reports indicated the thickness of imported Aluminium Foils as 7 micron or above. The appellant/assessee is contesting these findings on the ground that there are variation in different reports and it is not so easy to correctly determine the exact thickness of Aluminium Foil. I find that this argument of the appellant/assessee is not fully convincing. While the thickness in microns is to be ascertained by the accurate scientific methods, it is not contested that the competent labs including a private independent competent lab is not having facility or expertise to conduct such tests. None of the reports indicated any figures nearer to 6 Micron as declared by the appellant/assessee while importing the impugned goods. 5.3 He also taken us to the compilation and drawn our attention more particularly test report of Central Revenues Control Laboratory (hereinafter referred as the ''CRCL'') dated 22-10-2010 where report has come CLR/22-A - 7.06 micron (seven decimal zero six) and CLR/22-B - 7.02 micron (seven decimal zero two). 5.4 He also taken us to the test report of Shriram Institute For Industrial Research dated 2-5-2011 where report of thickness of Foil, Micron 7 Micrometer/Thickness Gauge (LC-1 Micron) has been shown. 5.4 He also taken us to the test report of Shriram Institute For Industrial Research dated 2-5-2011 where report of thickness of Foil, Micron 7 Micrometer/Thickness Gauge (LC-1 Micron) has been shown. 5.5 He also taken us to the test report of private laboratory Spectro dated 4-3-2010 where thickness of the aluminium foil was found to be 6.7 micron. 5.6 He also taken us to the Commercial invoices which has been issued under importer''s code where thickness is shown less than 7 micron. 5.7 He also taken us to the Test/Inspection Certificate at page No. 8 of the compilation where the thickness of the aluminium foil has been shown as 6MICx780MMxCO i.e. less than 7. 5.8 He also taken us to the judgment of the Supreme Court in State of Himachal Pradesh vs. Jai Lal reported in (1999) 7 SCC 280 wherein it has been held as under :- "14. On a perusal it is clear that many entries in the report need to be explained. Many of the trees of the orchards; their expected production of the tree is shown as nil. No reason whatsoever is stated in the report why the witness felt that the tree had no productive capacity. The assessment made by this witness appears to have been made on some sort of calculation the basis of which is not stated in the report; nor does the report disclose the reason for the end-result arrived at by the assessor. While judging the acceptability and reliability of the report it is to be borne in mind that Shri Panwar visited the Orchards only in the succeeding year and that too after the apple season of that year was over. Judged in this background the High Court cannot be faulted for having held that the report of the assessor is based more on surmises and conjunctures than actual observations or on scientific reasons. 16. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. 17. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. 18. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination. This Court in the case of Hazi Mohammed Ikramul Hague vs. State of West Bengal: AIR 1959 SC 488 concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons. 6. He also relied upon the decision of Supreme Court in Lakshman Exports Ltd. vs. Collector of Central Excise reported in 2002 (143) E.L.T. 21 (S.C.) wherein it has been observed as under :- "2. There was a difference of opinion between two Members of the Tribunal and the matter was referred to the President. The difference of opinion arose because of the findings of the Vice President of the Tribunal that the principles of natural justice had not been observed and that the assessee had suffered thereby. The President, however, did not agree and he held that there had been no request by the assessee to cross-examine the representatives of the two concerns to show that the goods in question had been accounted for in their books of account and appropriate duty had been paid. The President, however, did not agree and he held that there had been no request by the assessee to cross-examine the representatives of the two concerns to show that the goods in question had been accounted for in their books of account and appropriate duty had been paid. He also observed that he failed to understand the logic behind the request for cross-examination. We find that, in the reply to the show cause notice, the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the goods in question had been accounted for in their books of account and the appropriate amount of Central excise duty had been paid. The logic of such request is clear from what is Stated therein. 3. It is now not contested that the matter should go back to the assessing authority, who shall hear the matter de novo after ensuring that lacunae pointed out in the order of the Vice President are met." 6.1 He also taken us to the document regarding Aluminium Foil imported from China wherein while imposing a safeguard duty, it has been provided as under :- (B) on Aluminium Foil falling under Heading 7607 excluding - (a) Aluminium Foil of thickness less than 7 micron : (i) 30% ad valorem, when imported from the 23rd day of March, 2009 to 22nd day of March, 2010 (both days inclusive). 6.2 He also relied upon the decisions of Gujarat High Court regarding cross-examination and referred to the following judgments :- (1) Arunodaya Mills Ltd. and Anr. vs. Union of India and Anr. - 1985 (21) E.L.T. 390 (Guj.), (2) Manek Chemicals Pvt. Ltd. vs. Union of India - 2016 (334) E.L.T. 302 (Guj.), (3) Savino Micron (India) Pvt. Ltd. vs. Union of India - 2017 (351) E.L.T. 250 (Guj.). 7. Counsel for the respondent Mr. Pathak has taken us to the record and has stated that there was no objection filed before adjudicating authority after the report from Shriram Institute. He also contended that there was no request for cross-examination before the adjudicating authority and he has referred to the findings of Shriram Institute''s report. 7. Counsel for the respondent Mr. Pathak has taken us to the record and has stated that there was no objection filed before adjudicating authority after the report from Shriram Institute. He also contended that there was no request for cross-examination before the adjudicating authority and he has referred to the findings of Shriram Institute''s report. 7.1 He has further contended that after Shriram Institute''s report no cross examination was sought for before the adjudicating authority and for the first time, at the appellate stage, the appellant requested for cross-examinations i.e. before Commissioner (Appeals), thus, the tribunal rightly rejected the contention of the appellant. 7.2 He further contended that view taken by the Tribunal is just and proper and thickness of the aluminium foil was found to be 7 and more micron, and therefore, the interpretation should be taken according to the actual thickness. In that view of the matter, the view taken by the tribunal is just and proper. 7.3 He further contended that report which has been accepted by all the three authorities about the thickness of the aluminium foil was 7 or more micron. Further, no crossexamination was sought for by the appellant before the original adjudicating authority and therefore, the judgment of the Gujarat High Court will not apply in the present case. 8. We have heard counsel for the parties. 9. Before proceeding with the matter, it will not be out of place to mention that on the cross-examination, it is right of the assessee and such request should be made at the very first opportunity when it is available i.e. before adjudicating authority and not after adjudicating authority accepts the report and decides the matter against the assessee. 10. In that view of the matter, three judgments of the Gujarat High Court which have been relied upon by the Counsel for the appellant will not apply in the facts of present case, as the appellant sought cross-examination for the first time at the appellate stage. 11. We make it clear that the cross-examination or request for referring the matter to the expert laboratory should be made at the very first time and if such request is made then only the laboratory should decide thickness, quality after physical verification of the product. However, such request cannot be made at the appellate stage. 11. We make it clear that the cross-examination or request for referring the matter to the expert laboratory should be made at the very first time and if such request is made then only the laboratory should decide thickness, quality after physical verification of the product. However, such request cannot be made at the appellate stage. In the present case, if the appellant would have made such request at the first stage then it could have been open for the authority to send the product for further examination at the cost of the appellant. However, in the present case, no such request was made and therefore, the authorities up to the tribunal have correctly accepted the report of Shriram Institute. 12. Regarding the argument raised by the appellant in reference to tolerance limit, we are of the considered opinion that benefit of tolerance limit cannot be granted to the appellant and the liability of duty is ascertained as per actual thickness of the product. 13. In that view of the matter and in the facts and circumstances of the case, we are of the opinion that no error has been committed by the authorities and no substantial question of law arises in the present case. 14. On the issue of penalty, we are of the opinion that the appellant has bonafidely imported products pursuant to the invoices which were received from the manufacturer. In that view of the matter, for penalty we are of the opinion that present case being the first instance for misdeclaration on part of the appellant, we absolve appellant in appeal No. 1/2016 from penalty and personal penalty. In that view of the matter, in appeal 1/2016 penalty imposed on the appellant is waived. However, all other findings recorded by the authorities are upheld. 15. In view of the above, appeal No. 2/2016 stands dismissed and appeal No. 1/2016 stands disposed of.