TMI Blog2009 (12) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... ontent (as beta carotene) is not being satisfied as the chemical examiner has reported total carotenoid value ranging from 408 to 449 mg per kg. This particular value does not satisfy the conditions laid down in the said notification. In view of these facts arid circumstances, we hold that the impugned order is correct and does not suffer from any infirmity and appeals are rejected. - E/312/2009 and C/795/2008 - 1512-1513/2009 - Dated:- 22-12-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T). REPRESENTED BY: Shri M. V.S. Appa Rao, Advocate, for the Appellant. Shri V. Raja Ram, JDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - Appeal No. E/312/08 is filed against Orders-in-appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us., dated 1-8-2003. 3. Aggrieved by such an order, the appellant preferred an appeal be- fore learned Commissioner (appeals). Learned Commissioner (appeals) after considering the submissions, made by the appellant before him and after considering the grounds of appeal upheld the order-in-original and rejected the appeal filed by the appellants. 4. Learned counsel appearing on behalf Of the appellant submits that the issue involved in this case is whether the imported cargo is of non-edible grade of palmolein attracting tariff rate is eligible for exemption under Customs Exemption Notification No. 21/02 dated 1st March 2002 as amended by Notification No. 120/2003 dated 1st August 2003. It is his submission that the standard or the quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of A. 17.15 that the port health officer certifies that the oil is fit for human consumption. He would submit that the adulteration as has been recorded by the port health officer on the testing of the consignment at the first instance is very cryptic remark. It is his submission that the said test report does not indicate evidence of test parameters like refractive indexes, iodine value, cloud point, flash point despite specific standards stipulated for palmolein. As per Rules 5 of PFA rules 1955. Without any of these tests being performed, P.H.O, merely harps upon acid value. For acid value PHO is the only authority and not the chemical examiner. It is his submission that, however, after refining the PHO has certified the cargo as fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to chemical examiners for test at all and hence findings have no backing. For this proposition, he would rely upon the decision of this bench in the case of Sarada Agro Oil case [2006 (206) E.L.T. 348 (Bang.)]. It is his submission that the Customs Officers are not at all empowered under Section 6 of the PFA Act. It is only the PHO who is a statutory authority under this Act. It is his submission that carotenoid content (as beta carotene) is reported to be 451 mg per kg and it is noticed that less than 500 mg per kg is the requirement of the notification. He would submit that the carotenoid value goes down as the time elapses. He would submit that in an identical situation in the case of Ruchi Soya Industries case [2006(206) E.L.T. 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the chemical examiner on the carotenoid value. He would reiterate the findings of the adjudicating authority. 6. We have considered the submissions made at length by both sides and perused the records. The issue involved in this case is whether the appellants is eligible for the benefit of Notification No. 21/02 as amended by Notification No. 120/2003 dated 1-8-2003. It is undisputed in these cases that the appellant had imported crude palm oil through Kakinada Port and filed bills of entry. The first test report of public health officer clearly indicted that the said sample contained acid value of 10.74 and is therefore adulterated. Subsequent to the purification of the said sample as per the direction of the Hon'ble High co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in the said notification. The argument of the learned counsel that the carotenoid value will go down or will get deteriorated also does not also hold water as the goods entered into the Kakinada port on 7-11-2003 and the samples were drawn by the authorities and said samples were tested on 27-11-2003. The appellants have not asked for retest of the sample challenging the sampling procedures. 17 The various decisions relied upon by the learned counsel would indicate that in those cases, the samples were tested for carotenoid value belatedly. Since the testing of carotenoid value in those cases were belatedly done and the samples were found to be not complying with the standards as laid down in the notification, the assessee's ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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