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2022 (8) TMI 557 - AT - CustomsAbsolute Confiscation - Superior Kerosene Oil or Low Aromatic White Spirit - restricted item or not - to be classified under Custom Tariff Heading No. 27101990 or under Custom Tariff Heading No. 27101910 of the first schedule of Custom Tariff Act, 1975? - penalty - HELD THAT:- The goods imported by the appellant have been absolutely confiscated on the ground that the same is Superior Kerosene Oil and not Low Aromatic White Spirit as declared by the appellant. The Superior Kerosene Oil is a restricted item therefore the same was absolute confiscated. In this regard the department has conducted the chemical test of the product for which the representative sample was drawn and sent to the chemical examiner, Custom House Laboratory, Kandla. The chemical examiner instead of answering the query that whether sample confirmed the description of goods as Low Aromatic White Spirit. The chemical examiner reported that parameter meets the requirement of Kerosene as per IS- 1459:2016. There may be a possibility that on the basis of the parameters tested by the chemical examiner the same also match with the parameter of the product imported by the appellant. Therefore, it was important on the part of the chemical examiner to first check as per the query raised by the custom that whether the sample conformed to the description of the goods as Low Aromatic White Spirit or not - to arrive at the conclusion that the product is Superior Kerosene Oil there are 8 Parameters which needs to be tested but as per the test report only 3 Parameters were tested. For this reason the test report of chemical examiner reporting the product as Kerosene cannot be taken as conclusive. Moreover, the appellant have rightly pointed out that the Adjudicating Authority has based this finding only on 1 parameter i.e. “Distillation” out of 8 Parameters for holding that goods are SKO. Wavier of detention and demurrage charges - HELD THAT:- The department must give effect of the above order for wavier of detention and demurrage charges. The department could not establish that the goods in question is SKO therefore, the classification claimed by the appellant needs to be maintained. The impugned order is set aside and giving effect of this order the department shall vacate the absolute confiscation and penalty imposed is set aside - appeal allowed - decided in favor of appellant.
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