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TMI Blog2023 (12) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... e this forum. Revenue has, however, not filed any appeal. 2. Heard Shri Akshit Malhotra, Ld. Advocate for the appellant and Smt. Anandalakshmi Ganeshram, Ld. Assistant Commissioner for the Revenue in virtual mode. 3. The primary contention of the appellant is that the order as to remanding the matter back to the file of the adjudicating authority by the first appellate authority was not in accordance with law and that based on the available materials, the Commissioner (Appeals) himself should have passed an order. The appellant has also filed a paper book containing synopsis and decisions of various higher judicial fora in support. 4.1 Brief facts that are relevant for our consideration are that the appellant imported two consignments of what was claimed by it as LAWS, which was sought to be cleared vide Bills-of-Entry dated 30.10.2018 and 12.11.2018 by classifying the same under CTH 2710 1990 of the Customs Tariff Act, 1975. 4.2 The Revenue chose to draw samples from each of the consignments and sent the same for testing, to the Chemical Examiner, Custom House, Tuticorin, who filed test reports dated 20.11.2018 and 21.12.2018 - copies of which were filed by the appellant befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the first appellate authority has, without appreciating the submissions made by the appellant in its appeal, blindly agreed with the findings of the adjudicating authority and remanded the case to the adjudicating authority. * Even otherwise, without prejudice to the aforesaid, the first appellate authority has no power vested with him under Section 128A of the Customs Act, 1962 to remand the matter by citing the reason that the appellant had made fresh submissions and / or cited case laws. * Without prejudice to the above, it is submitted that there is no dispute that CRCL, New Delhi is a competent authority to analyse the samples in all technical matters pertaining to classification. It is submitted that the appellant's challenge is limited to the conclusions and the readings arrived at by the CRCL in the Report and not on the competency of CRCL, which are two independent and distinct aspects. * Method of testing is decisive in determining the authenticity and veracity of a reading arrived at for a particular property/parameter. It was pointed out by the appellant that the entire Test Report being relied upon in the Notice, nowhere discloses the method of testing, rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to even suggest, let alone prove that the said parameters were met. * Assuming that IS 1459-2018 was applicable, still no reliance can be placed on the Test Report dated 11.02.2019. It is submitted that under IS 1459-2018, there are 10 parameters which are required to be tested and reported in order to confirm that the product in question is kerosene. * Without prejudice to the above, the first appellate authority has rejected the submissions made by the appellant regarding the unreliability of the CRCL Test Report citing certain vague and unspecific grounds. * Without prejudice to the above, the first appellate authority has completely erred in rejecting or discarding the appellant's submissions on the unreliability of the CRCL Test Report. * Without prejudice to the above, the appellant submits that the End-Use certificates submitted by it have been ignored by the first appellate authority. * It had been importing identical goods from Kuwait which were cleared by the Customs authorities in Tuticorin Custom House classifying the same under T.I. 2710 19 90 and, that too, based on test reports from their own lab. * Without prejudice to its above contentions and submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions taken either at the first available opportunity i.e., drawing up of samples vide Mahazar dated 02.01.2019 or even at a later stage, while filing its reply to the Show Cause Notice. It is a different matter altogether that the appellant has objected to the report / expert opinion of CRCL, New Delhi. If we were to accept the above stand of the appellant and ignore the only available evidence, then there remains nothing other than an uncorroborated claim of the appellant as to classification of the goods in dispute under CTH 2710 1990 in its Bills-of-Entry, which do not lead us anywhere. 12.1 In the relied case of the Hon'ble Apex Court in the case of M/s. Tata Chemicals Ltd. v. Commissioner of Cus. (Preventive), Jamnagar [2015 (320) E.L.T. 45 (S.C.)], the facts are slightly different inasmuch as the importer therein had, by way of abundant precaution, filed the Bill-of-Entry along with the certificate of CASCO and, as observed by the Hon'ble Apex Court, the Department at no stage stated that they did not accept the CASCO report or that the same was defective in any manner, whereas in the case on hand before us no such certificates are filed along with the Bill-of-Entry or even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right persons to give opinion on the type of the products" with which it was concerned. 6. Regretably, the Tribunal's order under appeal shows that it was not fully conscious of the dispassionate judicial function it was expected to perform, and it must be quashed. 7. Learned Counsel for the Revenue submitted that the matter be remanded to the Tribunal so that the evidence on record may be reappreciated. As we have stated, no evidence was led on behalf of the Revenue. There is, therefore, no good reason to remand the matter." 13. In the case on hand before us, the facts are the other way around i.e., having disputed the classification, the Revenue approached an expert and obtained the expert's opinion, whereas the appellant, having filed its Bills-of-Entry, did not lead any evidence, but kept on raising objections after objections in the approach of the Department as well as the expert opinions. No affidavit is filed, nor did it file any iota of evidence in its support. Hence, going by the dictum of the Hon'ble Apex Court (supra), since we are not the experts, we have to go by the only evidence available, that is, expert opinion of CRCL, New Delhi since, admittedly, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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