TMI Blog2024 (1) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be relied upon to decide the classification of the goods. In the relevant judgment in the case of GAURAV LUBRICANTS INDUSTRIES PRIVATE LIMITED VERSUS C.C. -AHMEDABAD [ 2023 (11) TMI 1209 - CESTAT AHMEDABAD] where it was held that Since the test report of CRCL Vadodara/Delhi cannot be accepted the declaration made by the appellant in respect of nature of goods, classification and also valuation are found to be absolutely correct. In view of the above decision, it can seen that it was consistently held by this Tribunal that if a particular laboratory did not have the facility to test a product and if such laboratory test the same product the test report of such product cannot be relied upon for deciding the classification. Accordingly in the present case also being the same fact involved that the Kandla, CRCL did not have the facility to test calcite powder, the entire case based on the test report of CRCL, Kandla will not sustain. The impugned order is set aside - Appeal is allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Dhaval K. Shah, Advocate for the Appellant Shri Ajay Kumar Samota, Supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of the submission made by the both the sides and perusal of record, we find that it is admitted that at the relevant time when the CRCL, Kandla has under taken the testing of imported goods in question i.e. Calcite Powder the said laboratory did not have the facilities to test such product. This Tribunal considering the very same fact came to conclusion that, when a particular laboratory does not have the testing facilities, the test report of the said laboratory without having facilities of testing the goods cannot be relied upon to decide the classification of the goods. In this regard the relevant judgment in the case of Gaurav Lubricants Industries Pvt. Ltd (supra) is reproduced below: 4. We have carefully considered the submissions made by both the sides and perused the records. We find that the entire case of classification of the goods imported by the appellant was decided on the basis of test report of CRCL- Vadodara. We find that the testing was done in July 2017, October 2017 and February 2018. As per Circular No. 11/2018 dated 17.05.2018 as regard testing of samples of furnace oil, the certain laboratories were authorized which is given as under: Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the facilities to test the goods in question that is waste oil/furnace oil was not available with the CRCL- Vadodara or Delhi, the said Circular is also reproduced below: Circular No. 43/2017-Cus., dated 16-11-2017 F. No. 401/243/2016-Cus. III Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Forwarding of samples for testing to the Outside Laboratories - Regarding. It has come to the notice of the Board that due to lack of testing facilities of certain goods in Revenue Laboratories, there is delay in clearance of the consignments of these goods due to avoidable movement of samples between Customs field formations and Revenue Laboratories. 2. In this regard, CRCL has shortlisted the items whose samples cannot be tested in their Laboratories at present and also identified the Laboratories functioning under the other Ministries/Departments/Organizations where such samples could be tested. The list of such items and corresponding testing Laboratories are annexed herewith. 3. The Revenue Laboratories are, presently, in the process of up-gradation. However, until Revenue L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -11 Liquid Paraffins 23. C-14-C-20 N Paraffins 24. Petroleum Bitumen 60/70 25. Diesel Oil 26. Waksol 9-11 A Grade 27. Thinner Off Spec 28. Waste Oil/ Sludge Oil/ Sludge Water/ Bilge Water/ Stop Water/ Furnace Oil Central Institute of Mining and Fuel Research (CIMFR), Nagpur (Under Ministry of Science Technology) CSIR-CIMFR, Barwa Road, Dhanbad 826015, Jharkhand, INDIA Tel : 91-326-2296004/5/6, Email : director@cimfr.nic.in/ drpksingh@cimfr.nic.in/dcmrips@yahoo.co.in Central Mine Planning Design Institute Limited, Ranchi (Under Ministry of Coal) (A Subsidiary of Coal India Limited/a Public Sector Undertaking of the Government of India Under the Ministry of Coal), Gondwana Place, Kanke Road, Ranchi - 834 031, Jharkhand, India Phone : (+91) 651 2231850/51/52/53, Fax : (+91) 651 2231447/223082 Indian Institute of Petroleum (IIP), Dehradun (Under Ministry of Science Technology) CSIR - IIP, Dehradun 248005 Email : headrpbd@iip.res.in, Phone : 0135 2525743, 2660124, Fax : 0135 2660202 IOCL (R D Centre), Faridabad (Under Ministry of Petroleum) GM (Technology Promotion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic notice to bring the same to notice of all concerned. 5. Difficulty faced, if any, may be brought to the notice of the Board. Sl. No. Chapter No. Name of the Samples 5 27 Steam Coal Solvent C-9 C-9-C-11 Liquid Paraffins C-14-C-20 N Paraffins Petroleum Bitumen 60/70 Diesel Oil Waksol 9-11 A Grade Thinner Off Spec Waste Oil/Sludge Oil/Sludge Water/Bilge Water/Stop Water/Furnace Oil From the perusal of all the 3 Circulars as reproduced above, it is found that the facilities to test waste oil or furnace oil was made available only as per the circular dated 07.06.2009 prior to that the CRCL Vadodara or as the case may be CRCL Delhi, did not have the facilities to test the waste oil/furnace oil. Admittedly in the present case, the tests of goods in question were done prior to the issue of Circular No. 15/2009-Cus. Accordingly, the testing done by CRCL Vadodara/Delhi cannot be said to be the correct test as these Laboratories did not have the facilities for testing waste oil/f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed the appeal on the ground that CRCL is fully equipped to test the goods. On the other hand, the appellant has referred to Circular No. 43/2017-Customs, dated 16-11-2017, clarifying - that CRCL has shortlisted the items whose samples cannot be tested in their Laboratories at present and also identified the Lab, where such samples could be tested. Natural Calcite Powder is one of the specified product which CRCL Lab is unable to test. 7. The above fact demolishes the Revenue s case. As such, we find no merits in the Revenue s stand. Their appeal is accordingly rejected. Following the above decision of M/s. Manikya Creations Pvt Ltd, the Mumbai Bench of the CESTAT in the case of 20 Microns Ltd also expressed the same view as under: 5. The contention of the appellant that oil absorption value and particle size are both critical in determining classification cannot be lost sight of. The test report does not refer to particle size and it has been officially admitted that the chemical facilities of the department is deficient in capacity to carry out that test. As the test result is faulty, we apply the principle laid down in re Gulshan Polyols Ltd. and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Surat shall remain personally present in the court on the next date of hearing. As per above order of the Hon ble High Court, the department vide letter dated 31.10.2018 requested the appellant to take charge of their goods the said letter is reproduced below : From the above, it is a submission of the counsel that despite accepting the High Court order, the department has not released the goods so far, therefore he also request direction to department for release of the goods immediately. We find that since the goods were supposed to be released as per the High Court order, the act of department is clearly the non-compliance with the High Court order for which if any action to be taken it is by the High Court. Therefore, even after prima facie finding that the goods were supposed to be released this Tribunal can not give any direction in this regard with reference to the Hon ble High Court order dated 26.10.2018. However, since in the present case we are deciding the matter on merit, the appellant is otherwise entitled for release of the goods. As per our above discussion and finding, we are of the view that since the test report of CRCL Vadodara/Delhi cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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