2019 (3) TMI 253 - AT - Customs

Provisional assessment of bills of entries - Import of Coal - Bespoke Optimum Semi Soft Corex Coal - benefit of N/N. Sl No 68A of Notification No. 21/2002-Cus. - mismatch in the description of Coal - Held that - Since the bills of entries are assessed provisionally, this matter has to be remanded back to the adjudicating authority to finalise the bills of entry. Before sending the matter back to the adjudicating authority we deem it necessary to mention herein that the 1st Appellate Authority has relied upon the analysis report of the Deputy Chief Chemist, a copy of which was not handed over to the appellant importer. The 1st Appellate Authority could not have relied upon the said document. It is also to be noted that by relying upon the Dy Chief Chemist s report at the 1st appellate proceedings, appellant herein is deprived of his right to seek the retest of the samples, if any, in order to defend his case. Appeal allowed by way of remand.

Summary

Issues:
Classification of imported coal under Customs Tariff Act, 1975 for exemption from customs duty.

Analysis:
The appeal was against the order-in-appeal dated 06/12/2010 concerning the classification of imported coal. The appellant claimed full exemption from customs duty under a specific notification. The lower authorities found discrepancies in the description of the coal and the corresponding Tariff Heading. The bill of entry was provisionally assessed, and the duty was paid under protest. The adjudicating authority held that the duty paid was incorrect, leading to an appeal to the 1st Appellate Authority. The Authority classified the coal as non-coaking based on the Deputy Chief Chemist's report indicating CSN as 'zero.'

During the argument, the appellant's counsel contended that the load port report showing CSN as 'one' should entitle them to exemption under the notification. Reference was made to a previous Tribunal judgment supporting the consideration of load port reports for classification. The investigation was initiated by DRI, questioning the classification based on CSN levels. The appellant stressed the quality of the coal from the specific mine and highlighted inconsistencies in the investigation process.

The Tribunal found that the bills of entries were still provisionally assessed, necessitating a remand to the adjudicating authority. It was noted that the 1st Appellate Authority had relied on the Deputy Chief Chemist's report without providing a copy to the appellant, depriving them of the right to seek retesting. The Tribunal cited a Mumbai Bench case with similar issues regarding the reliance on test reports without providing them to the appellant in a timely manner.

The appeal was disposed of by setting aside the impugned order and remitting the matter back to the adjudicating authority for a fresh decision following principles of natural justice. The adjudicating authority was directed to finalize the bills of entry, consider all relevant documents, and review previous decisions in similar cases before reaching a conclusion.