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2016 (3) TMI 655 - AT - CustomsClassification of coking coal - whether the product is other than “Coking coal” - validity of test report - Held that:- samples drawn by the department were not in accordance with IS436. The CSN on re-testing increased from 1 to 5 or 5.5. This does throw doubt on the method of drawing samples as well as the testing method and does not inspire confidence in the procedures followed. The Hon’ble Supreme Court in the case of Tata Chemicals Ltd. Vs. Commissioner of Customs (Preventive) [2015 (5) TMI 557 - SUPREME COURT] held that the words ‘deems it necessary’ in Section 18 (1) (b) mean that the proper officer must have good reason to subject imported goods to a chemical test, otherwise the chemical analysis of imported goods done by the department is ultra vires of Section 18(b) of the Customs Act. This judgment needs to be considered by the Commissioner (Appeals) to arrive at a proper finding. The Commissioner has not been able to justify why the test reports were not handed over to the appellant immediately but were handed over after long periods. The delay assumes significance especially when the load port reports of testing by a reputed agency showed CSN of 1 and above. Commissioner has merely held that the appellant should have sought re-testing where the delay in handing over the test report was minimal and has not discussed the periods of delay but forget to consider that delay may lead to deterioration of the properties of coal including CSN values. He needs to indicate whether samples of coal have been retained and in what condition and should have clearly stated the delay that occurred in handing over the reports to the appellant in each case and the impact the delay would have caused if a re-test were to be done. The right of re-test may lose significance due to passage of time. Even if cross examination was not sought by the appellant, the Commissioner needs to counter the technical literature submitted by the appellant with his own supporting evidence. The Commissioner ought to have appropriately justified his finding on the issue that if the MMR value in the load port report is acceptable, then the CSN value should also be acceptable. Also he does not discuss the issue in respect of consignments for which such exemption was claimed quantification of demand. He failed to discuss the point that in cases where the final invoice value is higher than the provisional invoice value, the former was adopted, whereas in cases where the final invoice values were lower than the provisional invoice value, the final invoice value was not adopted. This is unjust on the part of Customs and without legal basis. Therefore, as there is so many flaws in the Commissioner (Appeals) order, the order is not valid and the case needs to be considered afresh by the Commissioner. - Matter remanded back
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