2022 (4) TMI 562 - AT - Central Excise

Classification of goods - ARH-C Crude Oil - Classifiable under Chapter sub-heading 27090000 or under Chapter heading 27101990 of the Central Excise Tariff Act 1985 - HELD THAT - In the present matter the test reports of product given by Dr. G.P. Sharma is in favour of the Revenue and test reports of product given by Dr. T.A. Sreenivasa Rao were against the Revenue. It is also found that during the personal hearing before the Adjudicating authority the counsel for the Appellant submits that since the matter has been examined in depth by the DGCEI and they have got another test report from other private reputed private laboratory there may not be any further point to cross examine the Chemical Examiners from his point of view. However if the adjudicating authority thinks otherwise the Chemical examiner may be called for cross examination. Clearly since the said report was in favour of Appellant they had bona-fide belief that the matter in their favour. However it is obligatory on the part of the Ld. Commissioner to have allowed cross examination of Chemical Examiner when he was to decide the matter against the Appellant - In case of contradictory test reports the cross-examination of expert is required. The matter is remanded to the adjudicating authority to decide the matter afresh after affording an opportunity of cross-examination to the appellant of said experts as well as after affording an opportunity of hearing to the appellant - Appeal allowed by way of remand.

Summary

Issues:
Dutiability and classification of "ARH-C Crude Oil" under Central Excise Tariff Act, 1985.

Analysis:
1. The dispute revolves around the classification of the product "ARH-C Crude Oil" manufactured by the Appellant. The department classified it under Chapter heading 27101990, while the Appellant claimed classification under Chapter heading 27090000 of the Central Excise Tariff Act, 1985, pertaining to Petroleum Oils and Oils obtained from Bituminous Minerals, Crude.

1.1 The Ld. Commissioner relied on the report of the Chemical Examiner, Central Excise & Customs Laboratory, Vadodara, which described the product as a mixture of Hydrocarbon Oil obtained from Bituminous Minerals Crude. Further clarifications were sought regarding the nature of the product, to which the Chemical Examiner concluded that it is a derivative of Petroleum Crude Oil and cannot be categorized under Chapter Sub-heading No. 27090000.

1.2 The investigation by the DGCEI and testing by both the Central Excise and Customs Laboratory, Vadodara, and a private laboratory, M/s Caleb Brett India Ltd., supported the Appellant's claim that the product belongs to the category of Crude Oil. The conflicting test reports necessitated the opportunity for cross-examination of the experts, which was not provided by the Ld. Commissioner.

2. The Appellant argued that the Ld. Commissioner misinterpreted the manufacturing process, focusing on the distillation process for a minuscule quantity of the crude oil. They contended that the Ld. Commissioner erroneously applied conclusions to the entire quantity of Crude Oil, which was fundamentally incorrect.

2.1 The Appellant highlighted the favorable test reports obtained from reputable laboratories, emphasizing the need to consider these reports over the disputed report. They stressed the importance of fair consideration and cross-examination of experts in cases of contradictory test reports.

2.2 The Appellant also argued that no "manufacture" took place as the starting material and final product both constituted crude oil, citing relevant legal precedents to support their position.

3. The Tribunal, after considering the submissions, set aside the impugned order and remanded the matter to the Adjudicating Authority. It was deemed necessary to provide the Appellant with an opportunity for cross-examination of the experts and a fair hearing before reaching a final decision on the classification of the product "ARH-C Crude Oil."

In conclusion, the judgment focused on the critical aspects of classification, reliance on test reports, interpretation of the manufacturing process, and the necessity of providing a fair opportunity for cross-examination in cases of conflicting expert opinions. The Tribunal's decision to remand the matter for further consideration by the Adjudicating Authority ensures a thorough and just determination of the dutiability and classification of the disputed product.