TMI Blog2017 (4) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that the samples were drawn in the presence of the representative of importer and CHA, from the different lots. It is also seen from the cross examination of the inspector that samples 25 Kg. of each were drawn 7 to 8 lots. The total quantity of importer is 8000 MT and in terms of IS 436 in such cases upto 6 lots of samples need to be drawn. Thus it is apparent that the provision of IS 436 were followed to the extent possible, given the fact that the importer had declared the intention to avail exemption 30 days after unloading. In absence of the certificate of CASCO regarding the ash content, it was necessary to get the sample tested in view of the claim of notification by the appellant. Appeal dismissed - decided against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there will be as many gross samples as the number of sub-lots into which the lot has been divided. 5.2. Sampling of coal from ships shall be carried out, as far as practicable, when coal is in motion. If it is taken on a conveyer, the gross sample shall be collected as per the procedure laid down in Table 3. If not, the gross samples may be drawn during loading or unloading of the ship. For this purpose, the number of increments to be taken shall be governed by the weight of the gross sample and the weight of increment as specified in Table 3 for various size groups of coal. TABLE 1 NUMBER OF SUB-LOTS/GROSS SAMPLES (Clauses 0.3.4.1 and 3.1 ) Weight of the Lot (Metric Tonnes) No. o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing Union of India v. Delhi Cloth General Mills Co. Ltd., 1963 Suppl. (1) SCR 586 = 1977 (1) E.L.T. (J 199) (S.C.), that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution's method should be applied. That this would apply to the Customs Act as well. IS 436 lays down. He relied on the said decision also to assert that there was no need to get the sample tested since thee was a declaration from the appellant that coal had less than 12% ash content and there was no reason to doubt it. He relied on para 13 and 14 of said decision wherein following has observed:- 13. The Revenue has grounded its case in Section 18 (b) which provides that imported goods can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing error. He tooks us though the cross examination of the Chemical Examiner, which reads as follows:- 11.4 The cross examinant of Shri Narendra Kumar, Chemical Examiner held on 29.11.2006. The following questions were asked by Shri S. Suriyanarayanan, Counsel and answered by Chemical Examiner. Question No. 1: Do you know that Balance cargo of M.V. Handy Explorer was cleared by Fairdeal Supplies Pvt. Ltd Ans: The answer to this question can be obtained from respective Assistant Commissioner of Customs. Answer given by ACC, Pipavav : As affirmatative. Question No. 2 What was the result for the balance cargo Ans: The Ash content for the cargo mentioned as balance (22337 MT) for MV Handy Explorer was 11% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roximately 500 to 600 Gms in four numbers were drawn against the Bill of Entry. Question No. 3: When the samples were drawn, the goods were lying in where and in which condition Ans: The goods were lying in the coal yard when the samples were drawn. Question No. 4: How the samples were drawn when the consignment size is very huge like the present one Ans: We go to storage yard and draw the samples in the presence of representative of importer and CHA from the different lots so that the sample represents the Ash Content, Moisture etc. of the entire goods. 7 or 8 lots of 25 Kg. of each is drawn, from the consignment from the various locations of the stored consignment, at different depths, as the coal is stored i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r could not have been fulfilled as the bill of entry itself was filed 30 days after the unloading of the ship. He pointed out that about 7 to 8 lots of samples of 25 Kg each was taken form different places, at different depths of the imported coal after unloading. This according to him best satisfies the criteria of sampling in the circumstances. 4. We have gone through the rival submission, we find that the issue to be decided is if the appellants are entitled to benefit of Notification 21/2002-Cus. The benefit of said notification depends on the ash content of the coal. The appellant have challenged the manner in which samples were drawn to assert that the test report obtain from the Chemical Examiner cannot be relied. We find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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