TMI Blog2015 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... ys, placing reliance on technical literature referred to hereinabove, which provides that carotene is unstable characteristic, which changes with exposure to light, air and atmosphere – Therefore, appellants have fulfilled condition of Notification No. 21/2002 (as amended) and they are accordingly entitled to exemption – Appeals allowed in favour of importer-assessee – Decided in favour of Assesse. - Appeal No. C/343 & 344/10, C/85205-85207, 85530 & 85531/13 - Final Order Nos. A/450-456/2015-WZB/CB, - Dated:- 4-3-2015 - Shri Anil Choudhary, Member (Judicial) and Shri P.S. Pruthi, Member (Technical), JJ. For the Petitioner : Shri V.S. Nankani, Advocate with Shri J.H. Motwani, Ms. Sparsh Prasad Ms. Nehal Parekh, Advocate For the Respondent : Shri A.K. Singh, Addl. Commissioner (AR) ORDER Per: Anil Choudhary The appellant, M/s Liberty Oil Mills, is in appeal in the batch of appeals arising from various orders as follows: - Sr. No. Appeal No. Order-in-Appeal No. Date Passed by 1. C/343 344/ 10 18 19/2010/MCH/AC/ Gr.I/2010 dated 11.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical process. If obtained by extraction an oil shall continue to be considered as crude, provided it has undergone no change in colour, odour or taste when compared with corresponding oil obtained by pressure; 65% 2.1 To claim the benefit of exemption notification, the appellant produced test-report of the load port issued by internationally acclaimed independent test laboratory, M/s SAYBOLT (M) SDN BHD, set out the Carotene content in the said cargo being over 500 mg/kg. Test reports were also produced at the discharge port of a private agency of international repute. The Revenue also drew samples in presence of representative from the appellant company. As per report of the private test agency, the carotenoid content was above 500 mg/kg, whereas the Dy. Chief Chemist of Govt. laboratory found the carotenoid content to be lower than 500mg/kg. Hence, exemption was denied. 2.2The appellant preferred appeal before the Commissioner (Appeals) but to no avail and is now before this Tribunal. This Tribunal vide its earlier order dated 23.2.2007, in the earlier round of litigation in the same matter, had remanded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indian Standards which specifies that samples of CPO is to be stored at the temperature less than -20C. As the Commissioner (Appeals) has failed to refer to the documents and evidence on records, his findings are vitiated. Further, the Commissioner (Appeals) has failed to take notice of facts on record, being the cross-examination of the Dy. Chief Chemical Examiner, who has admitted and candidly stated that not only is carotenoid not volatile, but is also not sensitive to light and does not deteriorate under normal conditions. The Commissioner (Appeals) further erred in holding that report of the Dy. Chief Chemist, who did not even know of any prescribed method existing, to draw samples for testing, has more credibility than the detailed report of the Geo-Chem labs, a reputed agency having its presence in more than 27 countries. 3.1 The learned Counsel also submits that the Commissioner (Appeals) erred in placing reliance on an interim order of the Tribunal in the case of Britania Industries Vs. Commissioner of Customs (Export) 2008 (226) ELT 257 which is mis-placed, being only a prima facie view of the Tribunal, more so, in view of the fact that appeal of Britania Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ruling of the Hon'ble Supreme Court in the case of Govt. of India Vs. Indian Tobacco Association - 2005 (187) ELT 162 (SC), wherein it was held that when the word substitution is used, the same is to be distinguished from supersession or mere repeal or an amendment and in such a case, substitution would have retrospective effect, i.e., it relates to the date of original notification. It is further noteworthy as pointed out by the learned Counsel that in spite of amendment to the original notification dated 1.3.2002 vide Notification No. 120/03-Cus, the substitution was made vide the Notification No. 7/05, making substitution in the original Notification No. 21/2002, which mean thereby that the substitution have occurred from beginning when the original notification was issued, on 1.3.2002. 3.4 The appellant further draws our attention that the notification of 2005, substituting the Entry 34, nowhere specified that the new condition and/or the substituted condition was not applicable retrospectively, and accordingly, the appellant is entitled to the benefit of the notification. 3.5 It is further urged that all the six test reports, which were issued by Mr. Nitin Nagm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same. 3.8 It is further urged by the learned Counsel that the drawl of sample is also defective for the reason that the appellant had imported the CPO for home consumption in bulk quantity, which was loaded in different tanks in the ship and therefore, sample is required to be drawn from each and every tank and then mixed to arrive at the sample, which was then required to be properly stored and tested as per the prescribed standard. It have further come out in the cross-examination of the Chemist that he was not aware of any prescribed standard for the drawl of sample and that the sample was received for testing in plastic bottle and it is further admitted by the Chemist that he was not aware that the sample is required to be maintained at the temperature of -20C. 3.9 It is further urged that the carotene value stands reduced according to the exposure to oxygen and light. Reference has been drawn to technical authorities/books from: - (i) Baileys Industrial Oil and Fat Products, 5th Edition, Vol-2 (ii) Journal of Science and Technology Extraction of Heat Treated Palm Oil and their Stability on beta-carotene during storage. Further, four test reports out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under or in violation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, regulation, notification or order, as the case may be, had not been amended, repealed, superseded or rescinded. 4.1 It is further submitted that ruling in the case of Indian Tobacco Association (supra) of the Hon'ble Supreme Court is not applicable. Further, in the said ruling, the Hon'ble Apex Court has held that Foreign Trade Policy is applicable when there is no equivalent law like Section159A. It is further pointed out that in the notification before the Apex Court, there was a mistake which was corrected by a clarificatory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of prescribed apparatus for testing, we hold that the learned Commissioner has erred in relying upon the test report of the Dy. Chief Chemist of the Custom House at Mumbai. 5.2 The contention of the Revenue that appellants representative did not object to the method of drawing the samples, does not help the case of the Revenue. The importer or the assessee cannot waive nor have waived the prescribed standard for drawing or storage of the sample. We also hold that the test reports are also vitiated due to delay in testing, ranging from 25 days to 82 days, placing reliance on the technical literature referred to hereinabove, which provides that carotene is an unstable characteristic, which changes with the exposure to light, air and atmosphere. This fact has also been recognized by the Tribunal in the case of Ruchi Soya International (supra). As we are allowing the appeal on merits we refrain from deciding the question as to the retrospective effect of amending Notification No.7/2005, wherein Entry No. 34 was substituted in the original notification No. 21/2002. Therefore, we hold that the appellants have fulfilled the condition of the Notification No. 21/2002 (as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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