TMI Blog2009 (1) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... avindran, Member (J) REPRESENTED BY : Ms. Rukmani Menon, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - This appeal has been filed against the Order-in-Appeal No. 6/2008 (V) CH dated 14-3-2008, passed by the Commissioner of Central Excise, Customs and Service tax (Appeals), Visakhapatnam. The Revenue has filed Cross Objection also. 2. Heard both the sides in the matter. 3. The appellants filed shipping bills for the export of Iron Ore, in terms of the Customs Notification No. 62/2007 dated 3-5-2007. Under this Notification, the concessional rate of duty would be levied at the rate of Rs. 50/- per M.T., if the iron content is not more than 62%. The goods were cleared on the basis of the documents submitted by the appellants. The appellant also submitted the test report from the reputed organization. In terms of the test report, the iron content was less than 62%. Hence the assessment was done provisionally pending test report of the Chemical Examiner. Later, the samples were taken at the time of export and samples were analysed and it was found that the Chemical Examiner's test report indicated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the moisture content which is very important. The Customs report does not indicate the same. Hence based on such a flawed report, the Commissioner (Appeals) has totally erred in denying the benefit of Notification No. 62/2007 to the Iron ore exported by the appellant and confirming the demand on them. (iii) The sample taken by M/s. Mitra S.K. Pvt. Ltd. shows that they took samples from 15 lots and that also Hatch-wise at the time loading of the cargo on the ship. A Hatch is a section of ship for loading a certain quantity. Cargo was loaded in six such Hatches of the ship. (iv) The Commissioner (Appeals) has held, as was contended by the lower authority, that the reports of the other laboratories cannot be relied upon as while drawing the samples, the Department's representative was not there. This stand is not sustainable in law inas- much as M/s. Mitra S.K. Pvt. Ltd. has been recognized by a Notification dated 4-5-2005 of the Ministry of Commerce and Industries as an agency for inspection of minerals, namely Iron ore and Manganese ore. Not a single point of infirmity in the test report of this laboratory has been pointed out by the Original authority. (v) The sampling a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account. It was also mentioned that the final payment was made by the buyer strictly on the basis of the iron content, 61.16% which conclusively proved that the iron content was much less than 62%. All these evidences which are in favour of the appellant have been brushed aside in a most casual manner without any proper justification. (viii) The appellant had requested for a re-test which had been ignored by the lower authority. This fact had been brought to the notice of the Appellate authority, who in view of the faulty testing procedure followed by the Department and a report based on such a faulty procedure and their reluctance to rely upon the reports produced by the appellant, the Commissioner (Appeals) ought to have acceded to the appellant's request for re-test instead of blindly following the order of the lower adjudicating authority. Hence on this ground also the impugned order deserves to be set aside. (ix) It was further pointed out that even when the demand confirmed by the lower authority was challenged, the lower authority en-cashed the Bank Guarantee in violation of guidelines laid down in this regard by the Board. This was also not taken note of by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. Further the exporter's representatives were present at the time of drawal of sample and at that time they have not disputed anything about the sampling procedure. Reliance was placed on the decision of the CESTAT, South Zonal Bench, Chennai in the case of Shree Tirumala Udyog v. Collector of Customs, Bangalore [2003 (162) E.L.T. 908 (Tri.-Chennai)] wherein it was held that unless proved beyond reasonable doubt that there was gross negligence or fraud or intricate process has not been followed, the results of the tests by the Chemical Examiner are binding both on the Department and the assessee. 5. We have gone through the records of the case carefully. The appellants have stated that the sample was not taken in accordance with the Public Notice. On the other hand, the Revenue has contended that they would not be obliged to go by the test report submitted by the appellant as well as the test report of the samples at the destination Port. Now in the present case the concessional rate of duty is available only when the iron content is less than 62%. According to the appellant, the said percentage is less than 62%. In this connection, the test report of M/s. Mitra S.K. Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of iron and other impurities is also given. Particularly, the moisture content is given even in the certificate given at China, destination Port. The proportion of other impurities like Aluminium, Silica, Aluminium oxide. Phospherous, Moisture is given, whereas when one sees the reports of the Chemical Examiner, he had given only the percentage of iron and the other percentage is not known. It is not known how the percentage was calculated as to whether it was calculated after the moisture was removed or not or whether moisture was taken into account while calculating the percentage of iron. In any case, when a reputed company which has also been recognized by the Ministry of Commerce and Industries has given the test report and when that test report is in variance with the report of Chemical Examiner, the request of the appellant for re-test ought to have been considered favourably. This has not been done. This is utterly a denial of the Principles of 'Natural Justice'. In any case, we do not find any strong reason for rejecting the test report produced by the appellant from two sources, one from reputed testing organization and the other from the destination Port. The evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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