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TMI Blog2015 (2) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,054/- along with interest thereon against the appellant M/s Sandur Manganese Iron Ores Ltd., Bangalore under Section 28 of the Customs Act, 1962 read with Section 28AA ibid by finalizing the Bills of Entry under which the appellants imported Low Ash Metallurgical Coke/ Low Ash Low Phosphorous Coke. Aggrieved of the same, the appellant is before us. 2. The impugned order has 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 forwarded with regard to sampling and the method that were followed in testing samples and also cross-examination of the Chief Chemist, who had tested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that test report does not indicate the phosphorous content and, therefore, the benefit of Notification No. 35/90 could not be extended. Thereafter, the remnant sample available with the Customs was forwarded for retest to the Central Revenue Control Laboratory (CRCL), New Delhi and the said laboratory found the phosphorous content to be 0.058% in respect of Bill of Entry No. 87 and 0.0589% in respect of Bills of Entry Nos. 57 and 58. The samples were tested by the CRCL, New Delhi in October, 1993 even though the samples were sent for retesting in February, 1993. Based on the test report, less charge demand was issued to the appellant on 24.10.1994 in respect of Bills of Entry No. 57 & 58 of 1990 and a show-cause notice dated 9.8.1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responding 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 rest 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 statistical accounts determination valuation of the phosphorous contents before the consignment was cleared. The colour comparison method is nothing other than the visual estimation of approximate contents and is not a quantitative determination. We are therefore of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as SGS (India) Pvt. Ltd., Mitra S.B. Pvt. Ltd., Goa and China Inspection Bureau wherein the phosphorous contents were found to be less than 0.035%. However, no credence has been given by the Commissioner to these test reports. Similarly, at the time of exportation from China, the appellant had contracted International Inspection & Consultancy, Cargo Surveyors, Samples & Consultants, Tokyo to give the test report and the said agent had certified that the phosphorous conent is 0.026% after drawing 80 incremental samples at the time of loading of cargo. Similarly, after receipt of the goods in India, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport of Chief Chemist, CRCL cannot be relied upon. He also relies on the decision of this Tribunal in the case of Rajkot Engineering Association 2000 (123) ELT 978 (Tri), wherein it was held that if the samples are not drawn as per the procedure prescribed by the ISI standards, reliance cannot be placed on such test reports. Reliance is also placed on the decision of this Tribunal in the case of Adani Exports Ltd. 2010 (249) ELT 93, wherein the samples were sent belatedly for testing and proper procedure was not followed in drawal of samples. In those circumstances, this Tribunal held that reliance on test reports of CRCL is not permissible. In view of the above, he pleads for setting aside the impugned order and allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee 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 IS 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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