TMI Blog2024 (2) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... BER (TECHNICAL) AND MR. SOMESH ARORA, MEMBER (JUDICIAL) Ms. Himanshi Patwa, Advocate for the Appellant Shri. Sanjay Kumar, Superintendent (Authorized Representative) for the Respondent ORDER This appeal has been filed by OASIS IMPEX against re-classification of the product imported by them. 2. Learned Counsel for the appellant pointed out that they had imported calcite powder (uncoated). The revenue reclassified the product as calcite powder (uncoated). The reclassification was done on the strength of the Chemical Examiners Report. All the Chemical Examiners Report have been placed on records by the revenue. Learned Counsel pointed out that at the material time as per F.N. 401/243/2016-Cus-III dated 16.11.2017, the Customs Laboratory did not have facility to test the Precipitated Calcium Carbonate . The serial No 9 of the table attached to the aforesaid circular reads as follows:- Sr. No Chapter No. Samples to be referred Suggested Laboratories 9 26 6. Lime Stone 7. Quick Lime 8. Dolomite 9. Natural Calcite Powder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a list of items and corresponding testing laboratories was annexed where samples could be tested from the identified list. 2. In addition to the existing list of laboratories provided in Annexure to above mentioned Circular, CRCL has identified some more entities annexed herewith as Annexure, where the samples could be tested. 3. Principal Commissioners/Commissioners of Customs are requested to issue suitable Public Notice to bring the same to notice of all concerned. 4. Difficulty faced, if any, may be brought to the notice of the Board. Hindi version will follow. Annexure Sl. No. Chapter No. Samples to be referred Suggested Laboratories (1) (2) (3) (4) 10 27 12.Coking Coal 13. Steam Coal 14. Solvent C-9 15. C-9-C-11 Liquid Paraffins 16. C-14-C-20 N Paraffins 17. Petroleum Bitumen 60/70 18. Diesel Oil 19. Waksol 9-11 A Grade 20. Thinner Off Spec 21. Waste Oil/Sludge Oil/Sludg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs formations should follow the respective standard sampling technique prescribed by the concerned laboratory for the items under question. The Commissionerate should ascertain sampling requirement with the laboratory concerned before drawing samples from the consignment. The sampling requirements may clearly be specified on the website of the Commissionerate. b. In cases of live consignments which cannot be cleared without getting the test reports due to its hazardous nature or for any other reason, the samples shall be forwarded to the concerned laboratory at the earliest. Further, the Commissionerates should develop a mechanism in consultation with the laboratories so as to get the test report expeditiously and preferably online. c. In cases where the time taken by laboratory exceeds three days, the importer should invariably be given an option to warehouse goods under section 49 of the Customs Act. d. Testing fee, if any, shall be paid by the importer or the exporter. 4. It is further clarified that aforementioned procedure shall not be applicable in cases where Partner Government Agencies themselves draw the sample. 5. In view of above, the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Laboratories (CPCB) (Under Ministry of Environment) Ministry of Environment, Forest Climate Change, Government of India, Parivesh Bhawan, CBD-cum-Office Complex East Arjun Nagar, DELHI 110032, INDIA Tel : 91-11-22303655, Fax : 91-11-22307078, Email : psms.cpcb@nic.in, adaba.cpcb@nic.in From the above circular, it can be seen that against waste oil/furnace oil, the Laboratories mentioned in column 4 do not include the CRCL Vadodara and CRCL Delhi. The facilities to test the goods namely waste oil and furnace oil was made available which is prescribed under Circular No. 15/2009-Cus dated 07.06.2019, the same is reproduced below: M.F. (D.R.) Circular No. 15/2019-Cus., dated 7-6-2019 F. No. 401/243/2016-Cus. IV Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes Customs, New Delhi Subject : Forwarding of samples for testing to the Outside Laboratories - Regarding. I am directed to refer to the Board Circular No. 43/2017-Cus., dated 16th November, 2017 [2017 (355) E.L.T. (T25)] on the subject above cited. In the said Circular, a list of items, the samples of which could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities for testing product can be accepted or otherwise. In case of M/s. Asian Granito India (supra), this Tribunal dealing with the identical issue observed as under: 7. We also find merit in the submissions made by the Ld. Counsel for the Appellant that even otherwise, the test reports of Kandla Customs Lab do not test all parameters as required under IS: 8767-1978, i.e. the Specification for Precipitated and activated Calcium Carbonate for Paints, and the range of Oil Absorption and other parameters (including particle size) are not found in the present case at all. This IS: 8767-1978 was referred to in the cases of 20 Microns (supra), Gulshan Polyols(supra) as well as in the case of Sakshi Makfin (supra) before concluding that identical product in question was classifiable under Chapter 25 and not under Chapter 28. Similar view was expressed by this Tribunal in the case of M/s. Chem Plast vide order No. A/11151-11152/2023 dated 12.05.2023, wherein it was observed as under: 4. We find from the factual matrix that at the relevant time Kandla port CRCL laboratory, was not having requisite test facilities, even as per the case laws cited as well as the CBEC Circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In view of above undisputed fact that during the relevant time as per Board Circular and also on the basis of the judgment cited above the CRCL Vadodara or as the case may be CRCL Delhi being not equipped with the facilities to test waste oil/furnace oil the test report of the said laboratories cannot be accepted. As regard the submission of the learned Counsel that the department violating the direction of the Hon ble High Court did not release the goods despite specific direction by the Hon ble Court, we prima facie find force in the submission, in this regard the relevant order of High Court is reproduced below: Heard learned Counsels for the parties. The direction contained in para 5 of the order dated 17.09.2018 passed in Special civil Application No. 13267 of 2018 is not complied with and a categorical statement is made by the learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Asian Granito India Ltd, the following order was passed: We have carefully considered the submissions made by both the sides and perused the records. We find that the appellant had claimed at the threshold that the Kandla Customs Lab is not equipped to conduct test on Calcite Powder and even drawl of sample was also disputed as being importer. While in general, it is true that report of CRCL cannot be brushed aside lightly, however, when CBEC itself categorically admits that for calcite powder, their Labs were not equipped to test the same till 2019, as evident from Circular No.43/2017-Cus., dated 16-11-2017 as also Circular No. 15/2019-Cus., dated 7-6-2019, the Kandla Customs Chemical Lab reports as relied upon in the impugned order have to be discarded. The various case laws as relied upon by the Appellant, duly based on the said Board Circular dated 16-11-2017, in the context of classification of calcite powder and precipitated calcite carbonate, are well founded and apply to the present case on all fours. The present case is identical to that in the case of 20 Microns (supra) as also Manikya Creations and Pavas Polychem (supra). It therefore must be held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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