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TMI Blog2022 (9) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ort dated 04.01.2022 of CRCL, New Delhi and writ of mandamus to undertake final assessment afresh by taking into consideration subsequent codified re-test report dated 22.08.2022 submitted by CRCL, Mumbai. 2. Statement of facts outlined by the petitioner-company in the writ petition leads to say that supplies of iron ore fines of 56.07% Fe content with moisture content of 9.65%, duly certified by Mitra S.K. Private Limited of Bhubaneswar, were made to Synergy Resources HK Limited of Hong Kong City by way of export. Upon submission of shipping bill on 16.12.2020, classifying the subject goods under Customs Tariff Head 26011142, provisional assessment under Section 18(1) of the Customs Act was framed on 22.12.2020 on the basis of said certification by applying NIL rate of duty. 2.1. The Deputy Commissioner, Paradeep Customs Division passed the final Assessment Order on 28.06.2022 under Section 18(2) of the Customs Act based on test report dated 16.12.2020 submitted by the CRCL of Kolkata and re-test report dated 04.01.2022 of CRCL, New Delhi. In the said Assessment Order it has been observed as follows: "4.6. From the test result of the CRCL, Kolkata and CRCL, New Delhi against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade Organization (WTO) negotiated Trade Facilitation Agreement (TFA), which aims at simplifying the trade processes and bringing down barriers to trade has come into force w.e.f 22nd February, 2017. India is a signatory to this agreement. 2) India has placed a number of trade related measures negotiated under the TFA in Category A. Article 5.3.1 envisages granting an opportunity for a second test in case the first test result of a sample taken upon arrival of goods declared for importation shows an adverse finding, Further Article 5.3.3 makes it obligatory to consider the result of the second test, if any, for the release and clearance of goods, and, if appropriate, may accept the results of such test. The aforementioned Articles have been placed in category A. In order to have uniformity in approach among the field formations with regard to re-testing of samples, the following procedure is prescribed: a. Customs officers may draw the samples from import consignments for testing in case of consignments wherever needed. The results of all test reports, adverse or otherwise, shall be communicated to the importer or his authorized representative/ Customs Broker immediately on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might arise circumstances where the customs officer is constrained to deny the re-testing facility. Board expects that such denial would be occasional and on reasonable grounds to he recorded in writing. h. Where the re-testing procedure is done at the instance of the department instead of the importer, the above procedure shall be followed mutatis mutandis. 3) Difficulties, if any, in implementation of this circular, should be brought to the notice of the Board. 4) Hindi version of the circular will follow. Yours faithfully, (Zubair Riaz) Director (Customs) 3.2. Though CRCL, New Delhi pursuant to re-testing request submitted report, the same being not on independent analysis rather based on the report of CRCL, Kolkata, the petitioner approached the Chief Commissioner of Customs for codified retest of remnant samples pertaining to shipping bill No.7251149 and submitted representations dated 15.06.2022 and 16.06.2022 for doing the needful. Nevertheless, without awaiting such codified re-test report in order to ascertain the veracity of test/retest reports of CRCL, Kolkata and New Delhi, the Assessing Authority had proceeded to pass the final Assessment Order on 28/29.06.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai submitted by codified re-test method falsifies the claim of the Department. The basic foundation based on which the final Assessment Order dated 28/29.06.2022 has been passed by the Deputy Commissioner, Paradeep Customs Division being removed, it is, thus, urged by Mr. Jagabandhu Sahoo, Senior Advocate that the impugned demand of Rs.39,91,58,867/- raised under Section 18(2) cannot be sustained. 3.6. Placing reliance on the Judgment rendered by the Hon'ble Supreme Court of India in the case of Reliance Cellulose Products Ltd. Vrs. Collector Of Central Excise, 1997 Supp(1) SCR 485 = 1997 (93) ELT 646 (SC), the learned Senior Counsel for the petitioner argued that he could demonstrate that the reports of CRCL, Kolkata and New Delhi could not be held to be just and correct in view of report of CRCL, Mumbai. Said report of CRCL, Mumbai having come to his possession after final assessment order being passed, the petitioner is entitled to get an opportunity before the Assessing Authority-Deputy Commissioner to place appropriate stance. It is further submitted by said Senior Counsel that in spite of repeated requests made before the Assessing Authority not to proceed further awaiting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mical Examiner and Chief Chemist in preference to the opinion obtained by RCPL from some private individuals." 5.1. Reference may be had to Ponds India Ltd. Vrs. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369 wherein it has been laid down as follows: "72. Furthermore, an expert in the field has also given his opinion in favour of the appellant. This Court in Quinn India Ltd. Vrs. CCE classified a product relying, inter alia, on the report of the clerical (sic chemical) examiner as under: (SCC p. 563, para 7) "7. The Tribunal has completely ignored the report of the Chemical Examiner dated 6-10-1981 and the final opinion of the Chief Chemist dated 2-4-1992 coupled with the classification issued by the Department regarding use of wetting agents in the textile industries falling under Sub-Heading 3402.90. Test reports of the Chemical Examiner and Chief Chemist of the Revenue unless demonstrated to be erroneous, cannot be lightly brushed aside. The Revenue has not made any attempt to discredit or to rebut the genuineness and correctness of the report of the Government, Chemical Examiner and Chief Chemist. Thus, the reports are to be accepted along with other documentary ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence holding as under- 1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. 3) The ratio in Sun Export case (supra)[Sun Export Corporation, Bombay Vrs. Collector of Customs, Bombay, (1977) 6 SCC 564] is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled." 5.5. Thus the settled legal position is that the exemption notification must, in all cases be strictly construed and any benefit of doubt must be given to the Revenue and against the assessee. 5.6. Under the aforesaid circumstances, given the law on the subject, suffice to say that since the assessing authority proceeded to finalise the assessment under Section 18(2) of the Customs Act, notwithstanding request being made by the petitioner to await outcome of codified re-test report from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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