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TMI Blog2019 (1) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... in Porbandar and balance was unloaded at Mudra port for the appellant's own use in their factory. Assessment was made provisional and samples were sent for chemical testing. In Mudra port, where bulk of coal was unloaded, assessment was done by extending the benefit of notification 21/02-Custom and treating the product as coking coal. However, in respect of imports made at Porbandar from the same original consignment, the test report from the chemical examiner declared the product as "other than coking coal". At the request of the appellant, the sample was again tested by CRCL (Central Revenue Control Laboratory), New Delhi. In the said report also it was held that the product is "other than coking coal". Thereafter, another request for te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. He argued that the provisional assessment was not ordered merely for test report but also because no original document was produced at the time of assessment by the appellant. He further pointed out that samples were drawn in the presence of the appellant and with proper Panchnama. 4. We have gone through rival submissions. We find that notification 21/2002 prescribes different rates for various varieties of "coking coal": S.no. Chapter or Heading or sub-heading Description of goods Standard rate Addl. Duty rate Condition no. 68 27.01 Coking coal of ash content below 12% 5% - - 69 27.01 Coking coal of ash content of 12% or more 15% - - 70 2701.12 All goods other than coking coal 25% - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate (Singapore), Pvt. Ltd in the general description describe the product as "coking coal". However, there is no such conclusion reached as a result of testing done by them. They have simply reported the test results. The description appearing in the certificate cannot be said to be the report of the Inspectorate but that is merely what has been described by the party seeking the test report. Similarly, the test report of Chemical Examiner measured the total moisture, ash content on ADB and Volatile Matter on ADB and comes to the conclusion that it is "other than coking coal". It does not describe as to what are the parameters which determine that the product is "coking coal" or otherwise. Similarly, it is seen that the report of CRCL meas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coals of about 89 wt & carbon on a dry, mineral manner-free basis, or 30% of volatile matter. Coals having 18-32% volatile matter are used to produce hard metallurgical coke." She argued that the above paragraph does not in any way prescribes that the coking coal should have volatile matter only within the range of 18-33 percent and that coal with a different percentage of different volatile matter cannot be used as coking coal. She further argued that the Commissioner (Appeal) as relied on the following paragraph appearing in page 455 of the reference book further reads as under: "Several Laboratory tests are used to determine the desirability of a coal or blend of coals for making coke. These are empirical and are carried out under con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at significant merit in the argument of Ld. Counsel. Nowhere in the proceedings, Revenue (or for that matter the importer) has produced any concrete literature which describes "coking coal" and identifies parameters that differentiate between "coking coal" and other coals. In these circumstances, it would not be possible to finalize the issue. The impugned order is, therefore, set aside and the matter is remanded to the original Adjudicating Authority, to decide afresh after identifying specific parameters duly supported by literature on which they wish to rely on for differentiating between "coal" and "coking coal". The matter can be decided only after the Revenue has identified the said parameters. The appeal is therefore, allowed by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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