2008 (7) TMI 166

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..... 000. Samples of the goods were drawn and sent to the Department's chemical laboratory. The Chemical Examiner, after test, reported thus : "Samples of Article 7239 received and tested in the laboratory do not show the presence of Fish Oil in them. The samples on analysis were found to be Sulphonated Fatty Oil and not Sulphonated Fish Oil and each can be considered as fat liquor". Aggrieved by the test results, the party asked for retest by the Central Revenue Control Laboratory (CRCL), New Delhi. It appears, the remnant samples were sent to that laboratory and, upon chemical analysis, it was reported that Article 7239 was a preparation having composition similar to the one mentioned under HSN Heading 34.03 and, therefore, the item could not .....

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..... ed counsel has also relied on the Apex Court's judgment in Poulose And Mathen v. Collector - 1997 (90) E.L.T. 264 (S.C.) and the Tribunal's decision in Super Tech Agro Oils Pvt. Ltd. v. Commissioner - 2007 (216) E.L.T. 618 (Tri.-Del.). We have heard the learned SDR also, who has reiterated the findings of the learned Commissioner (Appeals). 3. After giving careful consideration to the submissions, we have to reject, at the outset, the learned counsel's plea that the assessing authority ought to have gone by the test report pertaining to the previous import. Firstly, the learned counsel has not produced the Public Notice he referred to. Secondly, the appellants themselves asked for retest by the CRCL. 4. We are also not impressed with the .....

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..... sh Oil. The Chief Chemist (CRCL), after retest, certified that the samples were only preparations of composition similar to that of the preparations covered by Heading 34.03. This would clearly show that the Department's chemical laboratories performed the requisite tests to arrive at the composition of these samples, though the test reports do not contain details of the test results. After all, there is a presumption, albeit rebuttable, favour of the correctness of the test report issued by the Department's Chemical Examiner. Neither the CLRI's report nor the other report furnished by the assessee can be considered to have rebutted this presumption inasmuch as, in those reports, there was no indication of any test having been done in terms .....

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