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2015 (9) TMI 713 - CESTAT MUMBAI

2015 (9) TMI 713 - CESTAT MUMBAI - 2015 (322) E.L.T. 528 (Tri. - Mumbai) - Import of Crude Palm Oil - Benefit of Exemption notification-21/2002-Cus Drawing and testing of sample Appellant, to claim benefit of exemption notification no. 21/2002-Cus, produced test-report of load port issued by internationally acclaimed independent test laboratory Revenue also drew samples in presence of representative from appellant company and found that as per report of private test agency, carotenoid cont .....

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test report of Dy. Chief Chemist Test reports are also vitiated due to delay in testing, ranging from 25 days to 82 days, 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 .....

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e 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 11.1.2010 Commissioner of Customs (Appeals), Mumbai-I 2. C/85530 & 85531/13 762 & 763/Gr.I/2012 (JNCH)/ IMP-628 & 629 dated 27.12.2010 Commissioner of Customs (Appeals), Mumbai-II 3. C/855205 to 855207/13 864 to 866/MCH/AC/Gr.VIIA/ 2012 dated 15.10.2012 Commissioner of Customs (Appeals), Mumbai-I 2. Th .....

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drogenated vegetable oils is Crude Palm Oil, classifiable under Chapter Heading 15111000 of the Schedule to the Customs Tariff Act, which the appellant imports. Sometime in May, 2004, consignments of CPO was imported by the appellant vide various Bills of Entry for clearance of the said goods, under claim for exemption in terms of Entry No. 34 in the Table annexed to Notification No. 21/2002 as amended by Notification No. 120/2003. The said entry 34 in the exemption notification is reproduced he .....

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rifugation or filtration, provided that, in order to separate the oils from solid particles only mechanical force, such as gravity, pressure or centrifugal force, has been employed, excluding any adsorption filtering process, fractionalization or any other physical or chemical 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 .....

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t 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 matter back to the adjudicating authority with a direction that he should allow the cross-examinati .....

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PO dropped with passage of time and therefore it was extremely important to note the date of drawl of samples and date of test as well as the method of drawl of sample and storage of the sample. However, the Commissioner (Appeals) rejected the appeals of the appellant in the second round of litigation giving rise to the present appeals. 3. The learned Counsel for the appellant, among others, urged that the Commissioner (Appeals) has erred in holding that the purpose for having set the standard o .....

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noid content in the wake of its volatile nature. He further urged that the Commissioner (Appeals) has failed to go by the evidence on record and based his findings on his personal opinion, therefore, the findings are perverse. Further, other extraneous premises considered by which went to the Commissioner (Appeals) are evident in his observation - that the temperature in Mumbai have never been so high as to effect the volatile nature of carotenoid. The Commissioner (Appeals) has gone to the exte .....

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ndings 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 te .....

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ll pending final decision by the Tribunal. Further, the Commissioner (Appeals) has erred in not considering the ruling in the case of Ruchi Soya Industries Vs. Commissioner of Customs (Prev.) 2006 (206) ELT 827, which is a final order of the Tribunal and relied upon by the assessee. In the case of Ruchi Soya, this Tribunal has held that beta carotene level does not remain the same and with lapse of time and temperature variation, there is a deterioration of beta carotene content. It was also obs .....

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alue was reduced to 250 mg/kg instead of 500 mg/kg. On account of such substitution, the condition regarding carotene value would relate back to the date of parent/main notification i.e. Notification No. 21/2002 dated 1.3.2002. As the requirement was modified by way of substitution and/or clarification, under the rules of interpretation, it always relates back to the date of introduction of condition as to the minimum carotene content. In any view of the matter, even if the report of the Dy. Chi .....

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mmissioner (Appeals) has failed to appreciate that the entire imports were covered by the clarificatory amendment to the exemption Notification in question, as the carotene value was always found above 250 mg/kg by the Govt. Laboratory. Further the goods in question were cleared for home consumption, in accordance with law. 3.3 The learned Sr. Counsel for the appellant also relies on the ruling of the Hon'ble Supreme Court in the case of Govt. of India Vs. Indian Tobacco Association - 2005 ( .....

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. 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 f .....

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the sample, longest being 84 days. Further, Mr. K.S. Murthy has used the wrong apparatus for the test i.e. Levi Bond and Tintometer instead of Spectro Photometer as required under BS: 684. 3.6 The contention is further raised that the proviso of Section 164 of the Customs Act which deals with power of drawing samples, which empowers the proper officer while the goods are present in the customs area, to take sample of the said goods in presence of the owner for examination and testing, or for ob .....

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rther, no objection raised by the owner or the representative at the time of drawing of sample, does not waive the requirement of prescribed standard for drawing of the sample and its storage. 3.7 The appellant further relies on the ruling of the Tribunal in the case of Adani Exports Ltd. Vs. CC 2010 (249) ELT 93 (Tri-Ahmd), wherein it has been held that if the sample is not drawn correctly, the test report is not reliable. In view of the glaring evidence on record that the samples were not draw .....

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unsel 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 stan .....

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ology Extraction of Heat Treated Palm Oil and their Stability on beta-carotene during storage. Further, four test reports out of six are also unreliable for the defective method in test as the Chemist has used the Tintometer instead of Spectrophotometer. Tintometer is used for determination of colours by comparison with levibond glasses of known colour characteristics as explained in para 13 of the IS:518 (Part-I), 1964, whereas Spectrophotometer is used for testing the basic characteristics (ca .....

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this Tribunal be pleased to reject the test report of the laboratory of the Customs House, Mumbai relying on which, the lower authorities have drawn erroneous conclusion and further urges that this Tribunal may be pleased to hold that the substitution in the original notification in the year 2005 substitutes the condition with retrospective effect from the date of the original notification and accordingly, the requirement of minimum carotene content value is reduced from 500mg/kg to 250 mg/kg an .....

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as amended and repealed, superseded or rescinded, then, unless a different intention appears, such amendment etc., shall not (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder or (c) affect any right, privilege, obligation or liability acquired, .....

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, 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 .....

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trespective, the impugned orders are correct and the appeals are fit to be dismissed. 4.2 As to the import consignments in the question were imported prior to the substitution made on 4.2.2005, vide Notification No. 7/2005, the provisions are applicable prior to 4.2.2005 will be applicable and the substitution will not have the retrospective effect. Further, as the appellants representative, who was present at the time of drawing the sample did not object, the appellant can later on not be permi .....

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to the Revenue. Reliance is placed on Tata Chemical in support of his contentions that the test reports are valid. 5. Having considered the rival contentions and on perusal of the records, we find that the sole ground for denying the exemption is the test report of the Dy. Chief Chemist. For appreciating the test report, the undisputed premises are: - (i) IS:548 (Part-I)-1964 is the relevant standard for drawing of samples in the case of CPO. (ii) The standard is prescribed for drawing of sample .....

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