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TMI Blog2018 (9) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs, Excise and Service Tax Appellate Tribunal (in short, "the Tribunal") in Final Order No.40234 of 2017 dated 09.02.2017. 3.The above appeal has been filed raising the following substantial questions of law:- "(i) Whether the Hon'ble Tribunal failed to appreciate that the second test report dated 29.08.2005 issued by the National Metallurgical Laboratory (NML) would be determinative of the issue particularly when the Commissioner of Customs chose to agree to the Appellant's request for re-test of the goods imported in one lot? (ii) Whether the Tribunal had erred in upholding the imposition of penalty by holding that the appellant had misdeclared the description of the goods when the declaration was made as per the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the capability to draw a representative sample when checking for its chemistry. * Moreover Scrap is not a manufactured product and basically is arisings from various sources which are collected by the exporter in Luanda and then shipped to us. Hence it raises doubts on the chemistry of the whole parcel when just one sample is drawn and that too not by proper sampling methods which NML is capable of adhering to. * RKKR Steels Ltd has been in existence for over 50 years and have till today not a single case of mis-declaration or wrong valuation. * Although we have cleared 90% of the Cntrs, the scrap from these Containers is lying in our yard in Tirvottiyour and this can be inspected at any time. 6.The request, made by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test having gone in favour of the assessee and the benefit having been extended to the remaining goods, in our considered view, the transaction cannot be split up into two, more so when there is no notice issued to the assessee as to from which containers the samples were drawn at the first instance. 8.In any event, if samples are drawn, it goes without saying that it is random sample and if the test report of the sample certifies as pre-standard as declared by the importer, then it is presumed that the entire goods, which are covered in that consignment/bills of entry are of such nature. The onus is on the Department to prove that the goods, which are contained in the containers are all different category than what was drawn for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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