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TMI Blog2009 (8) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... %. Based upon the result of the above two test reports conducted by Customs House Laboratory, Kandla and Central Fuel Research Institute, Dhanbad, showing the Ash Contents to be more than 12%, the benefit of Notification No. 11/97-Cus., dated 1-3-97 stands denied to the appellant, with the resultant confirmation of demand of duty. The appellant submit that difference of content due to delay in testing. In the light of the various decisions held that- Having already examined that the evidences which weighed with the Tribunal to come to a conclusion in favour of the Revenue, are not available in the present case. In fact there are so many infirmities (long time gaps between drawal of samples and testing and retesting of the same, non-observance of IS procedure for drawing of samples, no indication showing ISI adoption of testing methods etc. and contradictions in the two reports) and the availability of favourable report, which lead us to discard the chemical examiners and CFRI report relied upon by the authorities below. In view of the above, we set aside the impugned orders and allow both the appeals with consequential relief to the appellant. - C/45 and 1206/2005 - A/1969-1970/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultant confirmation of demand of duty to the extent of Rs.24,97,477/- (Rupees twenty-four lakh ninety-seven thousand four hundred and seventy-seven only). 5. Arguing on the appeals, learned advocate, Shri Naresh Thacker has submitted that the samples were drawn from the imported consignment of Week Coking Coal after a period of twenty-one days. They were however not immediately sent to the Customs House for testing. The said samples were kept in the custody of the department for three months and were ultimately sent on 8-9-1997. According to him such delay in getting the samples tested immediately, inspite of having drawn the samples, has resulted in unbalanced results, showing the Ash Contents to the tune of 15.9%, as against the Ash Contents being below 12% in the Load Port certificate of quality as also in the test report of M/s. SGS India Ltd. He further submits that the same samples were subsequently sent to Dhanbad after a further gap of one year and as per the report of the Central Fuel Research Institute, Dhanbad, Ash Contents were found to be 13.2%. By submitting that even the two test reports relied upon by the Revenue showed different Ash Contents, this fact itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly denied by the authorities below. 9. After carefully considering the submissions made by both the sides and after having gone through the impugned order and the other documentary evidences, we find that the dispute required to be resolved in the present appeal is as regards the Ash Contents contained in the Weak Coking Coal imported by the appellant. Undisputedly, the certificate of quality procured at the Load Port disclosed the Ash Content on air dried basis as 9.98%. In the same report total moisture on "as received basis is 13.56% and inherent moisture (Air Dried), was 7.44%. The said certificate also certified that the sample was analysed in accordance with ASTM method. Further, at the Discharge Port at Okha, samples were drawn for every 2000 Metric tones of the said goods discharged by M/s. SGS India Ltd. which showed the date of attendance as 7-4-1997 to 16-4-1997. It also revealed the method of drawing of samples. The chemical analysis of the same on air dried basis showed the inherent moisture as 6.26% and Ash to the extent of 10.20%. The above two test reports are showing the Ash Contents to be less than 12% and thus are in favour of the assessee. 10. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House Laboratory, Kandla and the other by CFRI are showing varying results. Whereas the chemical examiner's report showed the Ash Contents to be 15.9%, the same were reflected as 13.2% by CFRI. The difference between the two reports is to the extent of 2.7% whereas the Ash Contents, according to CFRI report are in excess of 1.2% only than the requisite as Ash Contents of 12%. The result of the two test reports conducted by the Revenue itself shows that the Ash Contents vary depending upon various factors, the most effective being the moisture factor as also the method of sampling etc. The CFRI report clearly mentions that the quantity of the sample was not representative as per IS standards. There is also nothing on record to show that the samples were drawn in accordance with the IS standards. 13. We also note that the sample was described as Low Ash Coking Coal in the Revenue's letter dated 8-9-97, while sending the same to chemical examiner whereas the goods imported by the appellant are Weak Coking Coal. During the course of cross-examination of the chemical examiner conducted before the adjudicating authority, it was clarified by him that the word "Weak" in Weak Coking Coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly requested the department for getting the retest of the samples done at independent laboratories which are of repute and recognized by the government. They also referred to two such laboratories. The Superintendent's letter dated 10-3-99 informed the appellant that such request has not been exceeded to by the Assistant Commissioner. However, no reasons were given as to why retest was not possible. 15. The Tribunal in the case of Sandur Manganese Iron Ores Ltd. v. Commissioner of Cus., Goa reported in 2007 (218) E.L.T. 291 (Tri.-Mumbai) = 2009 (13) S.T.R. 90 (Tribunal) has observed that drawing of samples according to the ISI method was very essential and in the absence of establishment that these procedures are followed the report of the laboratory cannot be accepted. Similarly in the case of Bombay Oil Industries Pvt. Ltd. v. Union of India reported in 1995 (77) E.L.T. 32 (S.C.) it was observed that method of testing as laid down by ISI is required to be followed. In the case of UK Paints Industries v. Collector of Customs, Bombay reported in 1994 (74) E.L.T. 392 (Tribunal) it was observed that whenever method of testing is relevant, the method adopted are to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Further, in Para 22 of their judgment, it stands accepted that the test itself was conducted in accordance with the procedure laid down in IS: 1350 whereas in the present case there is nothing to show that the correct procedure as laid down in IS: 1350 was followed. In fact in Para 23 the Tribunal has observed by taking note of the earlier decision of the Tribunal in the case of Rajkot Engineering Association that where the samples were not tested as per specified standards the test reports cannot be accepted. As such they did not follow the Tribunal's decision in the case of Rajkot Engineering Association as the samples were admittedly tested with the procedure laid down in IS: 1350. The Tribunal's judgment in the case of Tata Chemicals Ltd. is not on any legal issue but is based upon the appreciation of facts and evidences in that particular case. Having already examined that the evidences which weighed with the Tribunal to come to a conclusion in favour of the Revenue, are not available in the present case. In fact there are so many infirmities (long time gaps between drawal of samples and testing and retesting of the same, non-observance of IS procedure for drawing of sample ..... X X X X Extracts X X X X X X X X Extracts X X X X
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