TMI Blog2019 (4) TMI 1706X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion can be arrived to decide whether or not the appellant is entitled to the benefit of the exemption benefit of notification No. 62/2007-Cus, dt. 03.05.2007. Since the exemption notification is a general rule, any benefit of doubt must be held against the appellant and in favour of Revenue. Appeal allowed - decided in favor of Revenue. - APPEAL No. C/1646/2010 - A/30331/2019 - Dated:- 13-3-2019 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Smt. B.V. Siva Naga Kumari, Pr. Commissioner (AR) for the appellant None for the Respondent. ORDER Per: Mr. P. Venkata Subba Rao 1. This appeal is filed by Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and held that the concessional rate of duty cannot be extended to the subject export since the Fe content was more than 62%, as per the results of the test conducted by the chemical examiner. The Let Export Order was given on 07.05.2008, the cargo was loaded from 04.05.2007 to 07.05.2007, samples were drawn on 07.05.2007 and the test results were reported on 16.05.2007. Therefore, it is seen that the chemical test was conducted without any inordinate delay. However, it is of import to consider that the Fe content as per the report of the chemical engineer was only marginally above 62% i.e. 62.3% to be precise. As per the report of SGS India, Kolkata, the iron ore content was 58.68%. However, this itself will not be sufficient to count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no dispute on the facts of the case that there are two reports one that the respondent had drawn a sample and sent for chemical examination to a private testing laboratory and the second test was conducted by the Chemical Examiner of Central Revenue Laboratory. The two reports give two different results. The chemical examiner s report shows that the iron content was more than 62% while the respondent report shows that the iron content was lower than 62%. The respondent had requested for re-test which could not be undertaken because of lack of sufficient sample. Therefore, a decision has to be taken based on these two test reports only. The test report by the Chemical Examiner will not entitle the appellant to the benefit of the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts one submitted by the exporter and the second one by the Chemical Examiner and there is no scope for conducting re-test because there are no samples left. Therefore, a decision has to be taken based on the available two test reports. The test report submitted by the appellant is by M/s SGS India, a well reputed private testing agency while the test report by the department is by the Chemical Examiner which also cannot be brushed aside. The first appellate authority in the impugned order relied on the judgment of the Tribunal Bangalore in the case of Bagadiya Brothers Pvt. Ltd. (supra) and held in favour of the appellant assessee giving the benefit of exemption notification as the department did not have the samples to prove through a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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