TMI Blog2022 (9) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment under Section 18(2) of the Customs Act, notwithstanding request being made by the petitioner to await outcome of codified re-test report from the CRCL, Mumbai and utilized the testing report of CRCL, Kolkata and followed by CRCL, New Delhi, the assessment order is required to be set aside. Further reason for setting aside assessment order is that the report of CRCL, Mumbai has come to the possession of the petitioner after final assessment order is passed. The petitioner, therefore, had had no opportunity to present the same before the Assessing Authority during the course of the assessment. There being invasion of principles of natural justice, the petitioner is liable to be afforded an opportunity to produce such evidence to counter the report relied upon by the assessing authority. The assessment order cannot be countenanced in view of conflicting reports of different CRCLs and, therefore, the assessment order is hereby set aside and the petitioner is directed to appear before the assessing authority on 26.09.2022 for necessary instructions along with certified copy of this order - Petition disposed off. - W.P.(C) No. 23073 of 2022 - - - Dated:- 13-9-2022 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of classification of subject export goods. The export goods were classified under Custom Tariff Item No.26011142, at the time of Provisional Assessment, as per the pre-shipment analysis submitted by the exporter, thus attracting NIL rate of duty in terms of Sl. No.20A of the Notification No.27/2011-Cus, dated 01.03.2011, as amended. However, in the changed scenario, as discussed above, the Iron (Fe) content of the subject Iron Ore Fines is more than 58% as per CRCL, Kolkata as well as CRCL, New Delhi. Thus, the impugned Iron Ore Fines are classifiable under Customs Tariff Item No.26011143, which attracts Customs Duty @ 30% adv. 2.2. Accordingly demand to the tune of Rs.8,57,60,892/- has been raised by applying Customs Duty @ 30% adv. on transaction value of Rs.39,91,58,867/- under Section 18(2)(a) of the Customs Act in terms of Serial No.21 of the Second Schedule to Export Tariff along with interest under Section 18(3) ibid. 3. It is stated by the Senior Counsel Mr. Jagabandhu Sahoo for the petitioner assisted by Ms. Kajal Sahoo, Advocate that on receipt of sample test report from CRCL, Kolkata, when the Assessing Authority-Deputy Commissioner sought to re-cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in writing to the said officer within a period of ten days from the receipt of the communication of the test results of the first test. Customs officers may take a reasoned view in case the importer or his authorized representative Customs Broker is unable to do so for reasons beyond his control. c. Where the Additional/Joint Commissioner of Customs grants an opportunity for a second test, he must clearly indicate in writing the name and address of the laboratory/ institution where the second test can be carried out. Such referral for retesting may be made only after being reasonably sure that the desired re-testing facilities exist at the laboratory/ institution. d. Re-test should be made only on the remnants of the samples originally tested or on duplicate representative sealed samples in the custody of the Customs. Further, to avoid delays, samples for second tests shall be marked as immediate before sending to the laboratory. In a case it may so happen that fresh samples have to be drawn, then such sampling should he done in the presence of the importer or his representative/customs broker. e. The requests for re-test of samples on the ground that the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition before this Court in W.P.(C) No.19225 of 2022. During pendency of said writ petition, CRCL, Mumbai vide Letter dated 23.08.2022 intimated the result of codified re-test which was sent by the Customs Division, Paradeep with reference to memo dated 16.02.2021 with respect to shipping bill No.7251149, dated 16.12.2020 whereby it is declared that the sample iron ore fines has 55.6% Fe content (on dry basis) with moisture content (as received) at 3.9%. 3.4. Since subsequent material was to be brought on record, the counsel for the petitioner sought for liberty to file fresh writ petition by withdrawing W.P.(C) No.19225 of 2022. This Court passed the following Order on 05.09.2022: 2. The exporter is before this Court challenging the order in original dated 28th June, 2022, whereby a custom duty of Rs.8,57,60,892/- being 30% duty calculated on the transaction value of Rs.39,91,58,867/- has been imposed upon finalisation of the provisional assessment made under Section 18(2) of the Custom Act, 1962 in respect of shipping Bill No.7251149, dated 16th December, 2020 based on CRCL report, Kolkata as also CRCL report, New Delhi specifying the Fe content to be above 58% in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of principles of natural justice. Therefore, he submitted that the assessment is required to be redrawn after considering the material which came to the records after passing of final assessment order. 4. Mr. Radheyshyam Chimanka, learned Senior Standing Counsel for Customs Department could not dispute such fact as pleaded by the petitioner. He has not disputed the fact that the report of CRCL, Kolkata is contrary to report of CRCL, Mumbai. 5. Legal position with regard to acceptance of report and application thereof during the course of assessment proceeding has been clearly laid down in Reliance Cellulose Products Ltd. Vrs. Collector Of Central Excise, (1997) 6 SCC 464 = 1997 Supp.(1) SCR 485 = 1997 (93) ELT 646 (SC). It has been observed in the said reported case as follows: 12. These orders are now under challenge before this Court. We were referred to a number of test reports obtained by the appellant from various persons and on the basis of these opinions, the reports of the Departmental Chemical Examiner and also the Chief Chemist were assailed. We are of the view that the Assistant Collector cannot be said to have erred in relying upon the reports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding use of wetting agents in the textile industries to hold that the product Penetrator 4893 possessed surface active properties and, therefore, is covered by Exemption Notification No. 101/66 dated 17-6-1966 as amended from time to time. 73. In this case also, the report of the chemical examiner is in favour of the assessee. Furthermore, in a case of this nature, where the Revenue itself has been holding the assessee to be a producer of a pharmaceutical product, the burden would be on the Revenue to establish that the goods cease to fall under a given entry. For the said purpose, no material was placed by the Revenue which was imperative. 5.2. It transpires, therefore, in the context of the pleadings in the writ petition that this Court in exercise of powers under Article 226 is called upon to decide the legality and validity of contradictory reports by weighing the pros and cons of the test reports submitted by different CRCLs on the quality of the iron ore fines. When the parameters and scientific analysis of the reports on which reliance is placed are contradictory, this Court would be loathe in weighing its options on such disputed questions of fact. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the testing report of CRCL, Kolkata and followed by CRCL, New Delhi, the assessment order is required to be set aside. Further reason for setting aside assessment order is that the report of CRCL, Mumbai has come to the possession of the petitioner after final assessment order is passed. The petitioner, therefore, had had no opportunity to present the same before the Assessing Authority during the course of the assessment. There being invasion of principles of natural justice, the petitioner is liable to be afforded an opportunity to produce such evidence to counter the report relied upon by the assessing authority. 6. Faced with such situation, the assessment order cannot be countenanced in view of conflicting reports of different CRCLs and, therefore, the assessment order is hereby set aside and the petitioner is directed to appear before the assessing authority on 26.09.2022 for necessary instructions along with certified copy of this order. The assessing authority on the appearance of the petitioner or his representative shall fix up date for hearing and the petitioner-assessee is at liberty to adduce evidence. The assessing authority weighing the scales of balance of cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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