2016 (3) TMI 298 - AT - Customs

Import of coking coal of Chinese origin - Denial of exemption under the Customs Notification No. 21/2002 - Ash content in imported coking oil found more than the declared one - Held that - sample was drawn in presence of the authorized representative of the importer/CHA (who did not object about the method of sampling) and on testing the sample, the Chemical Examiner, Central Excise & Customs, Regional Laboratory, Vadodara, certified that the ash content is 15.1%. Also the testing was done as per the prescribed method. Therefore, it is found that presence of ash content is more than what is declared by the appellant which results in denial of exemption under the Customs Notification No. 21/2002. - Decided against the appellant

Summary

Issues: Proper sampling procedure, testing of samples without consent, justification of final assessment based on test results.

Proper Sampling Procedure:
The case involved an appeal regarding the sampling and testing of coking coal imported by the Appellant. The Appellants contended that the sampling procedure was not proper and that the testing of the second sample was done without their consent. The Adjudicating authority noted that the sample was drawn in the presence of the authorized representative of the importer, who did not object to the method of sampling. The Commissioner of Customs (Appeals) also observed that the sampling was done for one bill of entry as the consignments were for the same importer, same commodity, and imported in the same vessel. The Commissioner upheld the sampling procedure as acceptable, stating that it did not vitiate the representative character of the sample.

Testing of Samples Without Consent:
The Appellants raised concerns about the testing of the samples without their consent. However, the Commissioner of Customs (Appeals) highlighted that the ash content was found to be more than 12% in both tests. The Commissioner justified the denial of exemption under Customs Notification No. 21/2002 based on the test results. It was noted that although there was no correspondence with the Appellant during the second test, the CHA, appointed by the Appellant, was informed about it. The Commissioner held that it was the duty of the CHA to inform the principal about the second test results.

Justification of Final Assessment Based on Test Results:
After careful examination of the records and arguments, the Tribunal found that the impugned orders were unassailable given the facts and circumstances of the case. The Tribunal upheld the decision of the lower authorities to deny the exemption under Customs Notification No. 21/2002 and to order the final assessment of the bills of entry at a 15% rate of duty. The Tribunal concluded that there was no reason to interfere with the decisions, and therefore, dismissed the appeal.

This detailed analysis of the judgment highlights the issues of proper sampling procedure, testing of samples without consent, and the justification of the final assessment based on the test results, providing a comprehensive overview of the legal aspects involved in the case.