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2020 (8) TMI 656 - AT - CustomsPrinciples of Natural Justice - Classification of imported goods - Naptha - cross examination of the Chemical Examiner - lacunas in the testing procedure emerged from the cross examination - introduction of new witness - primary defense of the appellant before original adjudicating authority was that as per Note 4 to Chapter 27 of the Customs Tariff Act, 1975, for the purpose of classification of the good under sub heading 2710 11 “light oils and preparations” the testing is to be carried out in the method prescribed under ASTM D 86 - HELD THAT:- From the cross-examination of Shri. Dilip Mehta, Assistant Chemical Examiner it the apparent that he has not conducted the test himself and the test was conducted by Shri. T.K. Myelvalganan Chemical Assistant Grade-I cross examination of the Chemical Examiner Grade-I shows that while he kept insisting that the ASTM D 86 method was followed. When asked to substantiate it, he would refer to some records and logs. No records were produced, no log book was produced. Even after the entire excise the cross examination done by Revenue the impugned order could only come to the conclusion that “thus during the cross examination the noticee have not be able to bring out the fact of Chemical Examiner had not followed the ASTM D 86 method”. On the strength of above assertion the impugned order come to the conclusion that the ASTM D 86 method was followed. Thus, it is apparent that Commissioner after examining all the facts of the case and the cross examination of Assistant Chemical Examiner Chemical Assistant Grade-I could only reach to a conclusion that the appellant have failed to establish of ASTM D 86 method was not followed. Thus, we find the impugned order cannot be sustained in the present form. It is seen that during cross examination of the Chemical Assistant Grade-I has clearly stated that log books and the registers are maintained in their laboratory, however, appellants chose not to ask for the same and Revenue chose not to produce the same - The entire purpose of remanding the case is defeated if the facts are not brought out completely. In view of above we set aside the order and remand the matter for fresh adjudication after fresh cross examination of the Chemical Assistant Gr.-I, the person who actually undertook the tests. He will produce all the lab records necessary to ascertain actual reading recorded and equipment used during testing and to prove his assertions. Appeal allowed by way of remand.
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