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2023 (8) TMI 1101 - AT - CustomsExemption form Customs Duty - import of consignment of "Coking Coal" from Indonesia - denial of benefit of N/N. 19/94-CUS dated 1-3-1994 on the ground that the ash content as per the said test report of CRCL, New Delhi was above 12% - HELD THAT:- In this case, department was asked to disclose the sampling procedure by providing various opportunities. The department was also asked to disclose if any particular method of testing was evolved for checking of ash content in accordance with Customs Tariff or any particular procedure was formulated. It being a settled law, that if no procedure of testing is evolved the same can be done as per the ISI Standard which, in the case of coke required it be done not through random sampling but through systematic sampling as provided in IS-436 which required that a lot while it is being discharged be divided into a number of sub lots approximately of equal weight. A gross sample is then required to be drawn from each sub lots by drawing of samples from the same sub lots. In relation to requirement of testing of Coking coal which as per the appellant required reasons to be recorded under Section 18(b) in view of decision in case of Tata Chemicals [2015 (5) TMI 557 - SUPREME COURT] by the proper Officer indicating why it deemed if necessary to do the chemical test - It is found that the department has not provided any reason as to why the commodity was subjected to chemical test other than the emphasized portion above. Despite affording opportunity, department has not brought on record any administrative instructions or any circular etc. which required the Coking coal was required to be subjected to chemical test. It has also not brought on record any file note indicating why Proper Officer deemed it necessary to conduct chemical test or other test. There is nothing on record that the sampling was done by the department by segregating lots and sub-lots and not randomly. Further, the date of sampling by CRCL has not been indicated by the department even while seeking explanation in the year 2013 from the CRCL authorities regarding their opinion as to what will happen to ash content of coal if coals samples are tested after long gap of time i.e. more than 11th months. It is found that as substantively found in the instant case also process of sampling is relevant to arrive at correct findings, it is held that the department has not been able to justify the process of sampling or the delay of more than 11 months in receipt of the report and that too by not indicating actual date of test. The belated communication by CRCL too is without any authoritative supporting material. Appeal allowed.
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