TMI Blog2023 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... authority is directed to allow the request of the Respondents for re-testing of the goods in question from a recognized notified Environment Laboratory. There are no infirmity in the impugned orders, therefore, the said orders are confirmed - the Adjudicating authority are directed to release the goods provisionally to the Respondents immediately - appeal of Revenue dismissed. - Customs Miscellaneous Application No.75367 of 2022 (Stay) In Customs Appeal No.75817 of 2022 WITH Customs Miscellaneous Application No.75368 of 2022 (Stay) In Customs Appeal No.75818 of 2022 - MISCELLANEOUS ORDER NO. 75061-75062/2023 and FINAL ORDER NO. 75121-75122/2023 - Dated:- 23-2-2023 - SHRI ASHOK JINDAL, MEMBER(JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER(TECHNICAL) Shri Manish Mohan, Authorized Representative for the Revenue Shri Sudhir Mehta, Advocate for the Respondent (s) ORDER Both these Appeals are having common issue, therefore, both are disposed of by a common order along with Stay Applications. 2. Briefly stated the facts of the case are that the Respondent namely M/s. India Carbon Ltd. is a calciner and runs a factory to manufacture Calcined petroleum Coke for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt directive in relation to import of RPC where in calciners were allowed to import RPC upto aggregate quantity allowed by the Supreme Court. The license was issued to the Respondent for anode making in aluminum industry conforming to IS 17049. RPC itself is not used for anode making in aluminum industry. Calcined CPC made from RPC is used for anode making in aluminum industry conforming to IS 17049. Anode making in aluminum industry confirming to IS 17049 is end use of imported RPC. It is not under dispute that Respondent fulfills all the relevant criteria of IS 17049 and sulphur in finished product CPC is less than 3.5%. The condition of license and notification is to be read in the context of Supreme Court directives and recommendation of EPCA. 2.6 The Respondent imported about 10,000 M.T. of green raw petroleum coke under the bill of entry No.4232598 dated 10th July 2021 under the said import license. Bill of entry was assessed to duty. The Respondent paid the duty and out of charge certificate was issued by the Custom Authorities. Out of 10,000 M.T. of green raw petroleum coke, the Respondent lifted about 9954 M.T. of green raw petroleum coke out of which 5544 M.T. of RPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standard is prescribed for requirement for RPC and CPC in anode making in aluminium industry however, the appellant is a calciner and used the imported RPC as feedstock for making CPC from RPC for their customers with sulphur content ranging from 0.8% to 3.5%. I also find from the Chartered Accountant s certificate that the Appellant has sale CPC having sulphur content raging from 1% to 3%. Moreover, as per BIS, CPC for making anode in aluminium industry should have sulphur less than 3.5% which the Appellant complied with and there is not dispute on this score. It is also noted that EPCA report 91 which was considered by the Supreme Court in the aforesaid judgement, wherein for calciner Industry, nothing is mentioned regarding BIS standard. The said report only recommended that the Calciner industry should be allowed to import Pet Coke as its industry uses it for feedstock and not for fuel. 19. Further, in general course the appellant s request for retesting of the goods by any recognized notified Environment laboratory as the Customs lap is not a recognized laboratory under Environment Protection Act, should not be denied in the ordinary course in terms of the guidelines is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods in respect of RPC imported under Bill of Entry No. 4632911 dated 10.07.2021 have been lifted by the officers of DRI by two revocation orders of seizure orders both dated 24th December, 2021. Both the revocation orders were issued after it was found on retest of the goods under the Bill of Entry No. 4632911 dated 10.07.2021 the sulphur content was less than 7%. 3.2 DRI officers took the samples from the Dock as well as from its factory and sent them to the Central Revenue Control Laboratory (CRCL), Kolkata for testing for the purpose of sulphur content. Though the test of sulphur content was a test under Bureau of Indian Standard Act under the standard provided by IS 17.49 and the said test could only be done by a notified Environment Laboratory, DRI sent the samples to it s laboratory which is not equipped to do test in accordance with IS Standard. The CRCL, Kolkata is not a notified laboratory. The Respondent demanded retest. 3.3 On 31.01.2022, the Respondent received a Show Cause Notice (SCN) under Section 124 of the Customs Act, 1962 issued by DRI for holding the goods imported under bill of Entry No. 4633032 dated 10.07.2021 liable to confiscation on the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified Environment laboratory as the Customs lab is not a recognized laboratory under Environment Protection Act, should not be denied in the ordinary course in terms of the guidelines issued by the Board vide Circular No. 30/2017-Cus dated 18.07.2017. 20. I further find that some of the seized goods has already been given clearance by the customs imported by the appellant, on testing of the goods s order by the concerned assessing officer, hence, during the pending adjudication, the impugned goods merit provisional release as per provisions of the Customs Act. 21. In view of the discussion made above, I held that the impugned order is liable to set aside. 22. In view of the above, I set aside the impugned order by the adjudicating authority and the detained / seized goods are ordered to be released provisionally under Section 110A of the Customs Act, 1962 as per the provisions of the Customs Act, 1962. 4. Against the said orders, the Revenue filed these Appeals. 5. During the pendency of the Appeals, Revenue also filed Stay Applications for considerations. 6. Today both Appeals as well as Stay Applications were taken up together for disposal. 7. The content ..... X X X X Extracts X X X X X X X X Extracts X X X X
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