TMI Blog2024 (1) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... of CRCL Kandla. The report of CRCL Vadodara came to the conclusion that the imported goods were LDO. The only difference between the imports made by the appellant vide vessel MT Hanyu Camellia and MT Eva Hongkong is that in the case of MT Hanyu Camellia retest report was available whereas in the case of appellants made by MT Eva Hongkong, the retesting request was ignored by Revenue despite repeated requests made by the appellants - it is apparent that the goods were not tested against the parameter DIN EN 15940:2019 by CRCL Vadodara. The test against the standard of DIN EN 15940:2019 by the CRCL was useful for determination of the actual character of the goods as per the CRCL New Delhi. It appears that the said standard for testing was ignored by the CRCL Vadodara and therefore the reports of CRCL Vadodara were at odds with the report of CRCL New Delhi. It is seen that the failure to allow retest of samples creates a serious doubt in the original test reports - It is also found that original test reports of CRCL have not factor in the standards required DIN EN 15940:2019 as per the test report of CRCL New Delhi. In these circumstances, the test report of CRCL Vadodara canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported by the appellant were thereafter seized. At the time of seizure appellants came to know about the existence of the test report of CECL Vadodara on the strength of which the goods were seized. Of 14.11.2021, the appellant requested revenue for re-export of the goods and also for supply of test reports and to retest of the samples. Permission for re-export was given to the appellant however no response was given in respect of request of supply of test report and of retest of samples. Another request to retest was made on 30.11.2021. 3. Learned counsel pointed out that other importers namely, M/s Yug International and M/s Shivtek Industries, who had comingled cargo imported along with goods imported by the appellant in MT Hanyo Camellia, had approached Hon'ble High Court. During the pendency of proceedings, they requested that the reports issued by CECL Vadodara can be verified by sending the samples for re-testing to CRCL, New Delhi. Pursuant to the directions issued by Hon'ble High Court, the goods were retested and it was affirmed that the said goods were in the nature of liquid paraffin and do not meet the specifications of LDO etc. 4. Learned counsel point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CRCL in he said case supported appellant. 8. Learned counsel pointed out that the charges in respect of imports made by MT Eva Hongkong were however confirmed. He pointed out that the investigation in both the cases were common. He pointed out that in both the cases, the request for retest by appellant was not given due attention and was ignored by the Revenue. He pointed that in the case of imports made by vessel MT Hanyu Camellia the importers who had imported cargo in comingled state in same vessel had approached Hon'ble High Court and retesting was done by CRCL- New Delhi on the direction of Hon'ble High Court and it was found that the goods were liquid paraffin and not Automative Diesel Fuel (IS-1460:2017), HFHSD (IS-16861:2018), Diesel Fuel (ASTM D975-21) and Light Diesel Oil (IS-15770:2008). 9. Learned counsel pointed out that in respect of goods imported by vessel MT Eva Hongkong, the goods were tested by CRCL Kandla and thereafter at the request of DRI by CRCL-Vadodara. The appellant vide letter dated 14.11.2021 sought re-test of samples on the ground that the report of CRCL- Kandla and CRCL Vadodara gave different findings on the same goods. Vide lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were retested at the behest of DRI by CRCL Vadodara. It was found that CRCL Vadodara report was different from the report of CRCL Kandla. The report of CRCL Vadodara came to the conclusion that the imported goods were LDO. 15. Certain other importers who had imported goods vide the Vessel MT Hanyu Camellia in comingled state with the appellant's cargo also faced similar inquiries from DRI. The impugned order holds as follows in respect of the consignment imported by the appellant vide vessel MT Hanyu Camellia 33. I find that IGM for the vessel MV Hanyu Camellia was filed by M/s. Samudra Marine Services Pvt. Ltd. as per the Bill of Lading provided by the vessel owner/agent. On going through the IGM, it is found that similar type of goods were imported by many importers and M/s. Yug International and M/s. Shivtek Industries were also one of them as quoted in the defense submission given by the importer as well as other co-noticees. 34. 1 find that importer M/s. Shivtek Industries Pvt. Ltd chose to file appeal before Hon'ble Gujarat High Court when the investigating agency got their imported goods samples tested from CECL, Vadodara. Hon'ble Gujarat High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been found as GTL Light Paraffin, allegation of confiscation, undervaluation, mis-declaration while re- export of goods become also null and void and therefore goods imported per vessel MT Hanyu Camellia are not liable for confiscation and no penalty can be imposed upon the importer M/s. Alka Petro Global Pvt. Ltd. and other co- noticees as mentioned at Sr. No. 1 to 10 in table of para 27.2 of the show cause notice, under section 114(iii), 112, 117 and 114AA of the Customs Act, 1962 to the extent of goods imported per vessel MT Hanyu Camellia. It is seen from the above observations in the impugned order that Hon'ble High Court had directed retesting of the samples which were earlier tested by CRCL Kandla and CRCL Vadodara. The test report of CRCL Delhi obtained on retesting of samples indicated that the goods were indeed Liquid Paraffin . Since the goods were imported in comingled state with the imports made by others namely, M/s Shivtek Industries Private Limited and M/s Yug International, it was held that the report of CRCL obtained in case of M/s Shivtek Industries Private Limited would equally apply to the imports made by the appellants. It is also noticed that in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for the Central Excise and Customs Laboratory, Vadodara and Central Revenue Control Laboratory to come to different conclusions with respect to the same cargo? I am not aware. If I see the report, I can explain the differences. From the above it is apparent that the goods were not tested against the parameter DIN EN 15940:2019 by CRCL Vadodara. The test against the standard of DIN EN 15940:2019 by the CRCL was useful for determination of the actual character of the goods as per the CRCL New Delhi. It appears that the said standard for testing was ignored by the CRCL Vadodara and therefore the reports of CRCL Vadodara were at odds with the report of CRCL New Delhi. 18. Learned counsel has also relied on the decision of Tribunal in the case of York Exports 2004 (169) ELT 175 and in the case of Garg Industries 2007 (208) ELT 535 to hold that the denial of retest goes against the principles of natural justice and in these circumstances the test reports need to be discarded. In para 3 and 4 of decision in the case of York Exports following has been observed: 3. We note that only two test reports covering two shipments, out of the sixteen export consignments from which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content at one particular place and poor in copper concentration at other place. Denial of the request of re-test on the ground that the appellants have accepted the finding of the test report is not in accordance with the equity principles of adjudication. The appellants have a right to contest the correctness of the test report and to ask for retest. In the absence of retest report, findings of the first test, when there is an expressed doubt about the same, cannot be made the basis for enhancing the value of the goods or for upholding the charges of mis-declaration. We also do not find any other corroborative evidence to show that the goods were undervalued. We also note at this stage, the samples are not available with the department as contended by the Ld. DR in the previous proceedings. As such, we find no justification for upholding the impugned order, the same are accordingly set aside and all the appeals allowed with consequential relief to the appellants. From the above, it is seen that the failure to allow retest of samples creates a serious doubt in the original test reports. We also find that original test reports of CRCL have not factor in the standards required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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