9911796707
TMI Blog2025 (3) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of Pig Iron and other allied products. In the course of its business, the Appellant imports coke, coal, and limestone to facilitate its manufacturing process. 2.1 The Appellant imported two consignments of Low Ash Metallurgical Coke (LAM Coke) from MMTC Limited on high sea sale basis (Ref. Long Term Agreement dated 24.09.2002 & Agreement dated 27.09.2022 between MMTC & the overseas supplier]. The Bills of Lading dated 10.09.2002 & 28.10.2002 specified that the quantity for the consignments was 25,366.255 MT and 32126.164 MT respectively. 2.2 The said agreements inter-alia provided that the total Moisture as received would be guaranteed at 5% maximum and above 10% would be rejected. The certificate of analysis and the certificate of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn in the presence and signature of the representative of the Appellant, the moisture content was determined at 0.6% & 0.9% respectively, i.e., within the penalty free tolerance percentage. Thus, no deduction was eligible to the Appellant and as such, differential duty was payable to the authorities. Accordingly, two Show Cause Notices dated 07.11.2003 were issued to the Appellant. 2.7 The details of the differential duty proposed for the said Bills of Entry are provided herein-below for ease of reference : Details Bill of Entry No. 000226 Bill of Entry No. 000313 Date of Bill of Lading 10.09.2002 28.10.2002 Date of Bill of Entry 03.10.2002 29.11.2002 Imported Quantity (MT) as per Bill of Lading 25,366.255 32,126.164 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en testing in accordance with BIS Standards. Without prejudice to the arguments advanced, the ld.Counsel further submits that the transaction value cannot be rejected without adequate justification, which is clearly absent in the present case. Therefore, he finally prays that the impugned orders be set aside. 4. On the other hand, the ld.A.R. for the Revenue reiterated the impugned orders. 5. Heard both the parties and considered the submissions. 6. We find that in this case, the samples were taken by CRCL on 03.10.2002 for Bill of Entry No.226 and 29.11.2002 in case for Bill of Entry No.313 and the test report has been delivered on 20.11.2002 and 22.07.2003 respectively. The said report has lost their evidential value as the test report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The admitted position on record is that the samples drawn were not drawn in accordance with law and were drawn with no regard whatsoever to IS 436. That IS 436 would apply to the facts of the present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Suppl. (1) SCR 586 = 1977 (1) E.L.T. (J 199) (S.C.), that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution's method should be applied. That this would apply to the Customs Act as well. IS 436 lays down :- ""5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng drawn not in accordance with law, test reports based on the same cannot be looked at. The Tribunal's judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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