TMI Blog2016 (9) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to testing at the time of import, it is not in dispute that, in the absence of such verification, it would be inequitable to consider those to be at par with imports lying uncleared. Refining of crude petroleum involves complicated processes and there may not be any ground to conceive that an output of the production process which is imported in the country for a specific industrial use would have uniform composition on each occasion. Competence of CRCL to test the product - laboratory approved by the Ministry of Environment & Forests - Held that: - testing is for coverage under note 2 of Chapter 27 of First Schedule of Customs Tariff Act, 1975. It is following a re-classification on account of non-fitment with that note that the goods become subject to Rules governing handling of hazardous waste. The origin of confiscation resides in the domain of Customs procedures and hence reliance on testing by CRCL is not questionable - the samples subjected to a valid test - testing procedure should not be subject to cross-examination by the appellant as the credibility of the test is not in question and a non-expert may not be in a position to query an expert on technicalities. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romatic content by ASTM D-2007-11 for testing of characteristic groups in rubber extender and processing oil and other petroleum derived oil by the Clay Gel Absorption Chromatographic method and that the methodology adopted by M/s Geochem, i.e. ASTM D-2140-08 capable of calculating carbon-type composition of insulating oils, was not a valid one. 3. These appeals have been filed by four importers of rubber process oil viz., M/s Apar Industries Ltd, M/s Sah Petroleum Ltd, M/s Gandhar Oil Refinery (I) Ltd and M/s Panama Petrochem Ltd and four individuals who were also subject to action under Customs Act, 1962 in proceedings under four show cause notices all dated 8th August 2013. M/s Apar Industries Ltd and Shri Kushal N Desai are in appeal against order-in-original no. 33/2014/CAC/CC(I)/AB/Gr Oil Unit dated 19th March 2014 which has confirmed duty demand of ₹ 85,04,056 along with penalty of like amount under section 114A of Customs Act, 1962 besides penalty of ₹ 5,50,000 on the two notices under section 112 of Customs Act and allowing confiscated goods to be redeemed for re-export on payment of fine of ₹ 10,00,000. M/s Sah Petroleum Ltd and Shri Vivek Sah are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under 27101960 as base oil and samples drawn were sent to CRCL Delhi for testing. The test results were found to be non-compliant with IS: 15078:2001 applicable to rubber processing oil. As the aromatic content was 78.5%, it did not appear to be eligible for classification under the declared entry but under 27079900 leviable to duty at 10%. The test report also indicated that that it is a waste product listed in Schedule III Part A of Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008. Further, owing to polycyclic aromatic hydrocarbon being more than 50mg/kg in the samples, the goods were opined by the CRCL to be hazardous waste. The goods were seized. Scrutiny of imports during the earlier period was also undertaken and those bills having been provisionally assessed were also included in the demand now under appeal. 6. The competence of CRCL to test the product was challenged as it was apparently not a laboratory approved by the Ministry of Environment Forests. The appellants sought provisional release which, having been refused, was taken to the Honble High Court of Bombay. The plea before the Hon ble High Court was subsequently withdrawn and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the impugned order for refusal of their request for sending of sample for re-testing especially as the CRCL did not have the expertise to test all the parameters, that Hazardous Waste (Management Handling Trans Boundary Movement) Rules, 2008 having been issued under the Environment (Protection) Act with the Ministry of Environment as the nodal ministry, it was it was improper for the testing to be done at Central Revenue Control Laboratory, and that the adjudicating authority had refused to allow cross-examination of official who carried out the test. The appellant also draw our attention to decision of the Madurai Bench of Honble Madras High Court in W.P. (MD) Nos. 1419 1003 of 2014 and that the sample relating to earlier consignment which were apparently sent to CRCL was not valid in the absence of a record of drawal of samples. The appellants placed reliance on the decision of Tribunal in Shalimar Paints Ltd. vs. CCE, Kolkata [2001 (134) ELT 285 (Tri. Kolkata)] which was confirmed by the Hon'ble Supreme Court in Commissioner vs. Shalimar Paints Ltd. [2002 (145) ELT A 242 (SC)]. It is also contended the classification under CTH 2710 was being regularly allowed throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use in rubber industry as fillers. However such residue is suspected to contain chemicals that are inimical to human health and hence, for reason of public safety, are not permitted for import except for re-processing. 14. On a careful examination of facts and circumstances, it would appear that the imports of the appellants do contain a higher percentage of aromatic constituent than prescribed for classification under 2710. The alternate heading which describe the imported goods to be waste brings it under the ambit of Hazardous Waste (Management Handling Trans Boundary Movement) Rules, 2008 Rules and therefore liable for action under section 111 and section 112 of Customs Act, 1962. 15. In relation to the goods imported earlier that had not been subject to testing at the time of import, it is not in dispute that, in the absence of such verification, it would be inequitable to consider those to be at par with imports lying uncleared. Refining of crude petroleum involves complicated processes and there may not be any ground to conceive that an output of the production process which is imported in the country for a specific industrial use would have uniform composition on ea ..... 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