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2015 (10) TMI 189 - AT - CustomsWaiver of pre-deposit condition – Inordinate delay in supply of adverse test reports - Applicants imported coal and filed Bills of entry declaring goods as “Bespoke Optimum Semi Soft Corex Coke” – Goods were assessed and provisional assessments were finalized by denying benefit of Notification claimed by applicants – Commissioner upheld decision of adjudicating authority denying benefit of Notification – Therefore, applicants seeking waiver of pre-deposit of duty – Held that:- applicants are disputing Chief Examiner’s report showing CSN ‘Zero’ and At present stage, re-test will not serve any purpose, as goods in question is perishable in nature – Also adverse test reports were supplied to applicants with inordinate delay – In said circumstances, adverse test report cannot be relied in light of load port certificate showing CSN is one or more –Purchase contract shows that applicants have asked for supply of coal as load port certificate having CSN of one or more – In case of Adani Exports Ltd. v. Commissioner of Customs, Jamnagar [2009 (8) TMI 439 - CESTAT, AHMEDABAD] Tribunal held that without discarding load port certificate, test report of Chemical Examiner is not acceptable – Therefore, non-supply of adverse report to applicants in time is violation of principles of natural justice – Claim of applicants with regard to classification of steam coal instead of coking coal before finalization of provisional assessment which may be resulted in refund, has not been considered by both lower authorities. Concurring View –Coal is not perishable commodity – However, applicant has produced evidence how samples get oxidized and CSN changes in samples – Admittedly in Customs Act there is no right to seek retest – In fact in old Central Excise Rules there was concept of retesting – However, there is delay in providing test report to applicant – Therefore Applicants have made out case for complete waiver of pre-deposit of duty – stay granted.
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