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2017 (4) TMI 486 - AT - CustomsBenefit of N/N. 21/2002-Cus - import of coal - notification provides that exemption should be granted to coal subject to the condition that the ash content in the said coal was less than 12% - The test report indicated that the sample contained 13.1% ash content and therefore the benefit of Notification was denied - certain aspects of the IS 436 could not have been followed in the instant case in as much as the appellant had not filed the bill of entry claiming the said examination until 30 days after the unloading of the material - Held that - from the cross examination of the inspector it is clear that the samples were drawn in the presence of the representative of importer and CHA, from the different lots. It is also seen from the cross examination of the inspector that samples 25 Kg. of each were drawn 7 to 8 lots. The total quantity of importer is 8000 MT and in terms of IS 436 in such cases upto 6 lots of samples need to be drawn. Thus it is apparent that the provision of IS 436 were followed to the extent possible, given the fact that the importer had declared the intention to avail exemption 30 days after unloading. In absence of the certificate of CASCO regarding the ash content, it was necessary to get the sample tested in view of the claim of notification by the appellant. Appeal dismissed - decided against appellant.
Issues:
1. Denial of benefit of Notification No.21/2002-Cus to the appellant due to higher ash content in imported coal. 2. Compliance with IS 436 for sampling coal from ships during loading or unloading. 3. Reliance on the decision of Hon'ble Supreme Court in Tata Chemicals Ltd. case regarding testing of imported goods. 4. Discrepancy in ash content of coal imported on the same ship by different importers. 5. Requirement of testing samples for ash content in the absence of a certificate from CASCO. Analysis: Issue 1: Denial of benefit of Notification No.21/2002-Cus The appellant challenged the denial of the benefit of the Notification due to ash content exceeding the permissible limit. The Tribunal found that the appellant failed to file the bill of entry for examination until 30 days after unloading, making it impossible for the Revenue to sample during unloading. However, samples were drawn in the presence of the importer's representative and CHA, complying with IS 436 to the extent possible. Issue 2: Compliance with IS 436 for sampling The appellant argued that sampling was not done as per IS 436, leading to unreliable test results. The Tribunal noted that samples were drawn from different lots in the presence of the importer's representative and CHA, as per IS 436 guidelines. Despite the delay in claiming exemption, the sampling process was conducted reasonably. Issue 3: Reliance on Tata Chemicals Ltd. case The appellant cited the Tata Chemicals Ltd. case to support their claim that testing was unnecessary due to a declaration of ash content. However, the Tribunal highlighted the absence of a certificate from CASCO in this case, necessitating testing to validate the appellant's claim for exemption. Issue 4: Discrepancy in ash content of coal imported by different importers The appellant raised concerns about the varying ash content of coal imported on the same ship by different importers. The Tribunal explained that coal from different sources could be loaded in separate parts of a ship, leading to differences in ash content due to lack of mixing during transport. Issue 5: Requirement of testing samples in absence of CASCO certificate The appellant's argument for exemption without testing was countered by the absence of a CASCO certificate. The Tribunal emphasized the necessity of testing samples to verify the ash content claim in the absence of supporting documentation. In conclusion, the Tribunal dismissed the appeal, finding no merit in the appellant's arguments. The decision was based on the compliance with sampling procedures, the need for testing in the absence of a certificate, and the practical considerations of coal transport on ships.
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