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2014 (12) TMI 731 - CESTAT MUMBAIImport of Low Ash Metallurgical Coke/Low Ash Low Phosphorous Coke - Reliability of test reports - Benefit of exemption Notification No. 35/90- Cus - Confirmation of duty demand u/s 28 r.w.s 28AA - Held that:- Goods were imported in July, 1990 and November, 1990. As per the test report furnished by the Chinese supplier and the Testing Agency in Japan, who conducted the test at the behest of the importer, the phosphorous content was found much lower than the 0.035%. The goods were again tested by the Customs laboratory in Goa at the time of importation and as per the Colour Test Comparison method, the phosphorous content was found to be less than 0.035% and the goods were provisionally cleared. After clearances by the customs, the assessee once again got the goods tested by M/s SGS (India) Pvt. Ltd., who also found the samples to be contain phosphorous less than 0.035%. As against the test reports by various agencies, Revenue wants to rely on the test report of the CRCL, which conducted the test in 1993 almost two years after the samples were drawn. There is nothing on record to show that the samples, which were drawn, were kept in airtight containers or the samples were drawn in accordance with ISI 436 prescribed for drawal and testing of the samples. In other words, there is no evidence adduced by the Revenue to show that the samples were representative and the sample could not have deteriorated with the passage of time. The Chief Chemist who was cross-examined had also accepted that only the samples kept in airtight containers would not deteriorate. However, there is no evidence forthcoming in this regard adduced by the Revenue. Benefit of doubt has to go to the appellant as the Revenue has failed to discharge the burden cast on it to show that the appellants are not eligible for the benefit of exemption Notification No. 35/90- Cus - demand of customs duty has been confirmed by the adjudicating authority under Section 28 of the Customs Act which is incorrect. If the contention of the department is that the goods were assessed provisionally earlier and they are being finally assessed now, then the duty demand should have been confirmed under Section 18 of the Customs Act and not under Section 28. - impugned order is not sustainable in law - Decided in favour of assessee.
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