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TMI Blog2004 (9) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 kgs. from the holds ship. The respondents representative was present when the samples were drawn. One set of samples was given to the respondents. The latter did not protest the manner in which the sample was drawn. It is only later when the test results were communicated the respondents wanted the samples to be drawn in accordance with IS 436 and sent for retest. The department by then was helpless inasmuch as the imported coal which was provisionally released on the execution of a bond were consumed by the importers and therefore was not available for drawing any fresh samples. The department then decided to send another set of samples lying with them to CRCL for retest. The report of CRCL was also not in favour of the Respondents. It is evident from the facts of the case that the respondents have been regularly importing coal of certain specifications and were aware that coal samples have to be drawn in a particular manner to determine the ash content. The respondents still did not object to the manner in which the samples were drawn in the presence of the representative. Thus, both the parties that is the Customs and the importers were adopting a method in vogue at the Port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the whole of auxiliary duty. The respondents imported metallurgical coal weighing 38462 MT (33462 MT belonged to TCL and 5000 MT to BLA) and claimed the benefit of the above said notifications. Bills of Entry filed by the respective importers were assessed provisionally subject to determination of ash content. Samples were drawn and sent to CFRI (Central Fuel Research Institute) for analysis who opined that the ash content of coal belonging to TCL is 13.8% by wt. and that of BLA is 12.6% by wt. The department communicated the results to the importers. The importers protested against the report and asked for the representative samples which were sent for analysis. The department thereupon sent another set of samples lying with them to CRCL for a retest. The latter in its report opined that TCL coal has 12.21% ash content by wt. and that of BLA has 12.33%. Thus the two labs confirmed that the ash content is more than 12%. 2. Now that two different labs confirmed the ash content to be above 12% in the imported consignments, show cause notices were issued asking the respondents to explain why the benefit of above mentioned notifications should not be denied, why the assessments shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is taken on a conveyer, the gross sample shall be collected as per the procedure laid down in 3. If not, the gross samples may be drawn during loading or unloading of the ship. For this purpose, the number of increments to be taken shall be governed by the weight of the gross sample and the weight of increment as specified in Table 3 for various size groups of coal. Table 1 Number of Sub-lots/Gross Samples (Clauses 0.3.4.1 and 3.1) Weight of the Lot (Metric Tonnes) No. of Sub-Lots/Gross Samples Up to 500 2 501 to 1000 3 1001 to 2000 4 2001 to 3000 5 Over 3000 6 Then the IS 436 goes on to describe the procedure to reduce a gross sample into a sample for a lab test etc. in great detail. The foreword to IS 436 says that the procedure has been prescribed after extensive research. 6. IS 1350 prescribes the method of testing for determining the ash content. This standard says that Methods of sampling shall be as prescribed in IS: 436. Thus the procedure laid down in 1350 is closely linked with the drawal of samples as per IS 436. Clause 8 of IS 1350 reads as follows :- 8. Determination of Ash 8.0 Outline of the Method. - The sample is heated in air to 500 C in 30 minutes, from 500 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Where M1 - mass in g dish, M2 = mass in g of dish and sample, M3 = mass in g of dish and ash, and M4 = mass in g of dish after brushing out of the ash and on weighing. 8.4 Precision - The results of duplicate determinations shall agree within the following limits : Ash, percent Precision Repeatability Reproducibility Upto 10.0 0.2 units 0.4 units Over 10.0 2.05 per cent of the 3.0 per cent of the Arithmetic mean of Arithmetic mean of The duplicate values The duplicate values 7. Both parties agree that the method prescribed for drawing representative samples in IS 436 is not followed. There appears to be some degree of agreement that gross air dried method followed by both CFRI and CRCL are in accordance with the method prescribed in IS 1350. We may point out that the respondents find fault with the GAD method adopted by the labs to test the ash content - according to them the coal should have been tested in the form in which it was received (as received basis) - instead of the method of reducing the coal s moisture content by air drying it, prescribed in the gross air dried method. 8. Shri Sethna, the learned Senior Advocate appearing for the Revenue, forcefully put forth that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the samples were not contaminated simply because a stone was used to break the lumps; that the endorsement made on the test report does not show that the samples sent for test are not adequate; that the cross examination of the Scientist of CRCL clearly showed that adequate samples were used for testing as per IS 1350; that in any case the respondents are precluded from doubting the veracity of the results obtained by qualified people and that both the testing houses have shown that the imported coal has more than 12% ash content. The respondents are not entitled for the benefit of concessional rate of duty. He pleaded that the Commissioner (Appeals) went on a wrong assumption that the goods are to be tested on as received basis and therefore his order should be set aside and the order of the lower authority should be restored. 9. The learned Senior Advocate, Shri C.S. Lodha appearing for the respondents, argued that it is an admitted fact that the samples were not drawn in accordance with the procedure prescribed by IS 436; that any results arrived at on the basis of non-representative samples are unreliable; that in the case of UOI v. Gangadhar Narsingdas Agrawal others [198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial from out of the heap on the wharf and another 20 kgs. from the ship s hold and out of these lots, prepared samples to be sent to CFRI for test to determine the ash content. The officer says that he used a clean stone lying in the vicinity and broke the lumps of coal into smaller pieces (chura) if for nothing else at least to fit the samples in appropriate containers. We wonder which Customs/Excise officer in his shining uniform really goes through this kind of trouble. But this one seemed to have done. This method of drawing samples was later assailed by the respondent very severely. The learned Advocate says that the manner in which the sample was drawn and the torture it was put to by using a stone to break the lumps is neither scientific nor permissible under IS 436. We have already extracted the procedure to be followed and the quantity to be drawn according to IS 436. The procedure adopted does not come anywhere near the method prescribed. 13. Thus the department having not relied upon the test report filed by the importers chose to conduct the test of their own by drawing samples in such a manner which cannot be called scientific. But the hitch is that the importers repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... version of things to argue that the test was not done as per IS 1350. We hold that Ram Singh s scholarly evidence cannot be relied upon for the above reasons. 16. The respondents relied upon certain endorsements on the test report of CFRI to argue that the results indicated therein are unreliable. Firstly, the delay of nine months that took place in reporting the test results is fatal according to the respondents. Secondly, the CRCL report is based on samples which did not represent their consignment. Thirdly, before testing the samples, the scientist did not determine the moisture content of the samples, a requirement under IS 1350. 17. We have considered all these pleas. It appears that the samples are adequate for testing as brought by the scientist of CRCL. Whether the sample is in the form of chura or lump is answered by the Assistant Collector. In the order-in-original he says that it is not exactly chura but consisted of small pieces. The second sample was sent to CRCL for retest as the respondents did not agree with results arrived at by CFRI. It is only after they declared that they did not have the third set of sample given to them that the department thought it fit to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force). There are other examples as well wherein the manner indicated in the Indian Standard Institution have to be followed for testing the imported goods under Chapter 27. Since the Notifications in question nor the chapter notes prescribed any particular method of testing, the laboratories such as CFRI and CRCL follow IS 1350 for testing the ash content in coal. The method of drawing coal samples is prescribed in IS 436, but the method so prescribed has not been followed in the present case. The respondents assailed the test reports on the ground that the test is vitiated when samples are not drawn in the manner prescribed in IS 436. It is an admitted fact that the officers who drew the samples of coal in the present appeals gathered 20 Kgs., of coal from the wharf and another 20 kgs. from the holds ship. The respondents representative was present when the samples were drawn. One set of samples was given to the respondents. The latter did not protest the manner in which the sample was drawn. It is only later when the test results were communicated the respondents wanted the samples to be drawn in accordance with IS 436 and sent for retest. The department by then was helpless in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be contesting the test results at such a time when the department could not extricate itself from the position earlier adopted by both the parties. The respondent s requests to draw sample in accordance with IS 436 nearly nine months after the goods had been cleared and consumed was to say the least an impossible task to be performed. All objections to the drawal of samples should have been made at an appropriate time. 23. We also have gone through the decision of the Tribunal in the case of Commissioner of Customs (P), Ahmedabad v. Rajkot Engineering Association [2000 (123) E.L.T. 968] relied upon by the respondents. In the above-cited decision the Tribunal observed that samples were not tested as per specified standards. In the present case the evidence of CRCL Scientist is clear that the samples have been tested in accordance with the procedure laid down in IS 1350. The facts in the present case are different from the one in the above-cited order. 24. We hold that the Commissioner was wrong in holding that the coal should have been tested on as received basis. We hold that both CFRI CRCL distinguished tested the samples correctly in accordance with the Standard laid down in IS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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