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TMI Blog2008 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf, which was rejected. After the hearing is over, written submissions were filed in appeal No. C/319 & 320/2007 and in appeal No. C/286/2007, which also have been taken into account. 3. The relevant facts, in brief, are as follows : - (a) M/s. Neptune Tradelinks Private Ltd. (hereinafter referred to as "NTPL"), M/s. Hazoor Sahib Chemicals Private Ltd. (hereinafter referred to as "HSCPL") and M/s. Worldlink T.C. Bond Store (hereinafter referred to as "WTCBS") entered into oral contracts with foreign suppliers and imported goods described as Naphtha and the consignment weighing 5872.881 MTs arrived at Kandla Port on 30-7-2004. On behalf of the three importers, M/s. Kiran Roadlines, the CHA filed bills of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner vide his order dt. 29-3-2007, ordered to classify the goods under CTH 2710 19 90 and rejected the benefit of exemption under Notification No. 21/2002-Cus. He further ordered confiscation of the goods, demanded duty and imposed penalties on various persons, which are as follows :- Party name Quantity confiscated (MT)/value Redemption fine imposed (Rs.) Duty demanded with interest (Rs.) Penalty/ Personal penalty imposed (Rs.) M/s. Neptune Trade link P. Ltd. 3451.073 10,59,07,442 2,00,00,000 68,85,663 1,01,79,616 -do- 1639.000 5,06,63,845 1,00,00,000 32,93,953 ---- -do- 12.000 3,37,809 25,000 ---- ---- Sh. H. Vyas, Director ---- ---- ---- 25,00,000 M/s. Worldlink T.C. Bond Store 745.290 2,30,28,992 50,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The cross-examination asked for in r/o the Chemical Examiner, who gave examination reports, has been turned down without valid reasons. The findings of the original authority in respect of classification is based on the opinion of the Chemical Examiner, which is not permissible. (d) The samples should have been tested in accordance with ASTM D 86 method. This is a statutory method of testing and no other method of testing can be adopted. None of the reports are as per ASTM D 86 method, which is the yardstick prescribed in Note No. 4 of Chapter 27. 4.2 Ld. Advocate Sh. R. Chibbor, appearing for appellants M/s. Hazoor Sahib Chemicals Pvt. Ltd. and Shri S.K. Gupta inter-alia submitted the following: (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not availed the opportunity to test the samples through the labs of their choice. (e) The reliance placed on the test reports of M/s. Reliance Industries Ltd. and M/s. IOCL are in the nature of additional evidence and the main evidence is the report of the Chemical Examiner. The reason for not permitting cross-examination has been given by the Commissioner in his order. 5.2 He seeks upholding the order of the Commissioner. 6.1 We have carefully considered the submissions from both sides. The classification relates to an item which requires to be done on the basis of technical parameters, which can be determined only on the basis of chemical test. The Note No. 4 relating to Chapter 27 specifically p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the report on the chemical analysis conducted by him. Therefore, the suggestion about the classification should be ignored and should be considered by the adjudicating authority independently. The report of the Chemical Examiner does not indicate the method adopted by him in the analysis. Therefore, it is not clear whether the test report has been conducted as per ASTM D 86 method prescribed under Note 4 of Chapter 27. This information could have been elicited during cross-examination of the Chemical Examiner. Under these circumstances, the adjudicating authority ought to have permitted cross-examination of the Chemical Examiner. 7. In the light of the above, we set aside the order of the Commissioner and remand the matter for de-no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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