TMI Blog2017 (10) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... out showing the moisture content and without applying the correction factor for moisture content. The sample was drawn on 10/05/2005 and was tested on 22/08/2005 which is beyond the period of one month and with the lapse of time, Fe content does not remain constant due to evaporation. Reliance placed in the case of UNION OF INDIA Versus GANGADHAR NARSINGDAS AGGARWAL [1995 (8) TMI 73 - SUPREME COURT OF INDIA], where it was held that if the percentage of iron content is determined after ignoring the moisture the percentage would not be relatable to the lumpy iron ore weighed at the relevant point of time for the purposes of charging duty. Penalty set aside - appeal allowed - decided in favor of appellant. - C/306/2012 - Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 113(d) and Section 113(i) of the Customs Act, 1962 and also proposed to impose penalty. After following the due process of law, the Commissioner vide order dt. 19/12/2006 imposed a fine of ₹ 7 lakhs in lieu of confiscation and imposed penalty of ₹ 1 lakh under Section 114. Aggrieved by the said order, appellant filed appeal before the Tribunal on the ground that the Chemical Examiner s certificate was not furnished to them which is in violation of principles of natural justice and this Tribunal vide its order dt. 01/02/2011 set aside the order of the Commissioner dt. 19/12/2006 and remanded the matter back for de novo proceedings and on de novo proceedings, the report of the Chemical Examiner, Cochin was given to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal another [1988(33) ELT 673(Bom.)] iii. Sociedade De Fomento Industrial Pvt. Ltd. Vs. K.C. Lakiri and another [1987(30) ELT 686 (Goa)] iv. Tata chemicals Ltd. Vs. CC (Prev.), Jamnagar [2015(320) ELT 45 (SC)] v. CC(Import), Mumbai Vs. Finesse Creation Inc. [2010(248) ELT 122 (Bom.)] 4.2. Learned counsel for the appellant further submitted that in the case of Alphine International cited supra, this Tribunal has set aside the order of the Commissioner of Customs and has held that the certificate produced by the appellant in that case has been issued by a reputed testing company and the fact that the sample was not drawn in the presence of the Departmental officer is not a very strong ground to reject the test results. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har Narsinghdas Agrawal another (supra), the Hon ble Apex Court has held as under:- It is immaterial what method one adopts for the purposes of separating the iron content from the lumpy iron ore but the percentage has to be determined from the total weight which was available at the given point of time after the iron content is determined. That is because the duty is relatable to weight and, therefore, once the iron content is determined keeping in mind the total weight the percentage can be determined separating the iron content from the rest of the impurities inclusive of moisture and thereafter ascertain in which category the lumpy iron ore would fall for the purposes of charging duty under the aforesaid Notifications. This view w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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