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TMI Blog2023 (6) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the 'CESTAT' for short), Ahmedabad. 2. The brief facts leading to filing of the present appeal are as under: 2.1. That M/s. Oil Energy (hereinafter referred to as the 'importer') had filed Bill of Entry No. 7736631 dated 22.08.2018 seeking clearance of 117.86 MT of Low Aromatic White Spirit packed in flexi pack, by classifying the same under customs tariff heading 27101990 of the First Schedule to Customs Tariff Act, 1975 and declaring its assessable value of Rs. 68,39,640/-. Based on the intelligence regarding import of Kerosene in guise of Low Aromatic White Spirit, the representative samples of goods were drawn under Panchnama and were tested by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Mr. Paresh Dave for the respondent. 4. The learned ASG has mainly contended that as per the Test Report given by the Chemical Examiner, the goods imported by the importer are meeting with the specification of Kerosene. It is submitted that vital parameters have been tested and it was found that the product in question is Kerosene. Learned counsel referred the Report and submitted that to arrive at the conclusion that the product is SKO, there are eight parameters and important three parameters were tested. 5. It is submitted that learned CESTAT has wrongly recorded the finding that the Adjudicating Authority has based its finding only on one parameter i.e. distillation out of eight parameters for holding that the goods are SKO. 6. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Adjudicating Authority as well as the First Appellate Authority have dismissed the claim of the importer. It is submitted that out of eight parameters, only one parameter i.e. distillation (flash point being the second and common between solvent and kerosene) report was submitted by the concerned Laboratory. Learned counsel, therefore, submits that the decision rendered by this Court in the case of Rajkamal Industrial Pvt. Ltd. (supra) would not be applicable. Learned counsel Mr. Dave referred to the said decision and submitted that in fact in the said case, tests were carried out by three laboratories and 14 out of 21 tests were carried out. Thus, in the facts of the said case, this Court applied the principle of "reasonable doubt" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en defined in any Act or in any of the statutes where this expression appears, yet the true meaning and connotation of this expression is now well settled by various judicial pronouncements. It was observed by the Supreme Court in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [1962 AIR 1314 : 1962 SCR Supl. (3) 549] that "a question of law would be a substantial question of law if it directly or indirectly affects the rights of parties and/or there is some doubt or difference of opinion on the issue". But "if the question is settled by the Apex Court or the general principles to be applied in determining the question are well- settled, mere application of it to a particular set of facts would not constitute a substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. While the Tribunal acts on materials partly relevant and partly irrelevant, it can give rise to a question of law if it is impossible to say to what extent the irrelevant material was used to arrive at the finding. Such a finding is vitiated because of the use of inadmissible material. Where any finding is based on no evidence or material, it involves a question of law." 13. In the present case, to arrive at the conclusion that the product is SKO, there are eight parameters which need to be tested. As per the Test Report, three parameters were tested. However, the Test Report of the Chemical Examiner categorically suggests that the goods imported by the importer are meeting with the specification of Kerosene. 14. In the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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