9911796707
TMI Blog2014 (12) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... s been passed in pursuance to this Tribunal's order vide Order No. A/485/WZB/2007/CSTB/C-I dated 28.8.2007 wherein the adjudicating authority was directed to furnish to the appellant/assessee, the procedures that were followed with regard to sampling and the method that were followed in testing samples and also cross-examination of the Chief Chemist, who tested the sample. 3. The facts relevant to the case are as follows:- The appellant imported 1569.63 MTs of Low Ash Metallurgical Coke vide Bill of Entry No. 87 dated 17.7.1990, 4604.625 MTs of Low Ash Low Phosphorous Coke vide Bill of Entry No. 57 dated 12.11.1990 and 8250.0 MTs of Low Ash Low Phosphorous Coke vide Bill of Entry No. 58 dated 12.11.1990. The Bills of Entry were provisionally assessed and the appellant claimed the benefit of duty exemption under Notification No. 35/90-Cus dated 20.3.1990, which provided for a concessional customs duty of 20% ad valorem in respect of coke with phosphorous contents of 0.035% or below. The appellant declared the phosphorous content to be 0.026% in respect of Bill of Entry No. 87 and 0.035% in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative. It noted the requirements contained in IS: 1350 (Part V) of 1979, Indian Standard Method of Test for Coal and Coke. This provides that samples shall be as in specification IS: 436. It provides for receipt of samples in sealed containers. It noted that in the case before it, the report of the National Test House was not based upon procedures that were in conformity with those laid down in these specifications and held that the balance of convenience was in favour of the importer. In the case before us, we therefore find good reason for not confirming the order impugned before us, we therefore find good reason for not confirming the order impugned before us. The passage of three years, and the corresponding variation in ambient, the effect of the moisture content of the coke and the percentage of the phosphorous in it could have a bearing on the ultimate test result. Unless it is possible to ensure that the moisture content was offset by samples which ought to have tested were air drying both the contents require moisture, it is not possible to accept the validity of the Chief Chemist's report. At the same time, it is evident that there has really been not statist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant had drawn and tested the sample through SGS (India) Pvt Ltd., which is one of the approved testing agency and the said agency had found the phosphorous content to be 0.029%. However, no credence has been given to these test reports by the adjudicating authority. 4.2 The learned Counsel further submits that it is an admitted position that the Bills of Entry were finally assessed and thereafter they were forwarded to Bombay Custom House for post audit. Once the Bill of Entry is finally assessed and there is no allegation of any suppression on the part of the appellant, the demand notices issued in 1995 much after the finalization of assessments are not sustainable in law. 4.3 The ld. Counsel further points out that the phosphorous content in the sample can vary depending upon the condition of the material at the time of testing. In the present case, there is no evidence that the samples which were drawn were kept in airtight containers and were forwarded to the CRCL, New Delhi in such containers. Further, there is no evidence that samples drawn were representative inasmuch as the procedure prescribed under ISI 436 for sampling has not been followed. In the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory in Goa at the time of importation and as per the Colour Test Comparison method, the phosphorous content was found to be less than 0.035% and the goods were provisionally cleared. After clearances by the customs, the assessee once again got the goods tested by M/s SGS (India) Pvt. Ltd., who also found the samples to be contain phosphorous less than 0.035%. As against the test reports by various agencies, Revenue wants to rely on the test report of the CRCL, which conducted the test in 1993 almost two years after the samples were drawn. There is nothing on record to show that the samples, which were drawn, were kept in airtight containers or the samples were drawn in accordance with ISI 436 prescribed for drawal and testing of the samples. In other words, there is no evidence adduced by the Revenue to show that the samples were representative and the sample could not have deteriorated with the passage of time. The Chief Chemist who was cross-examined had also accepted that only the samples kept in airtight containers would not deteriorate. However, there is no evidence forthcoming in this regard adduced by the Revenue. 6.2 The decision of the Tribunal in the case of Rajkot Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
