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TMI Blog2011 (8) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... ce cannot be relied upon cannot be faulted. In previous exports the products being of specification was agreed by department therefore respondent has to be given the benefit of doubt. Departmental appeal dismissed. - C/394/08 - A/357/2011-WZB/C-I(CSTB) - Dated:- 4-8-2011 - Mr.S.S. Kang, Mr. P.R. Chandrasekharan, JJ. Represented by: Mr. V.K. Singh, SDR for Appellant Mr. C.M. Sharma, Consultant for Respondent Per: P.R. Chandrasekharan 1. This departmental appeal is directed against Order-in-Appeal No. 21 (CFS) 2008 dated 10.1.2008 passed by the Commissioner of Customs (Appeals), Nhava Sheva. 2. Briefly stated the facts of the case are as follows: 3. M/s Raajratan Metal Industries Pvt Ltd, Ahmedabad respondent in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... percentage is chromium 28-32% and Nickel 8 to 10.5%. Since the export product did not conform to the specification of ER 312, it was proposed in the show cause notice to reject the claim for export under the DEEC Scheme and also to impose penalty under Section 114 of the Customs Act, 1962. The case was adjudicated by the Joint Commissioner of Customs vide order dated 31.01.2007 wherein the adjudicating authority came to the conclusion that as per the test report of the Chief Chemist the Chromium content of the export product was only 26% whereas as per the requirement of ER 312 grade the Chromium content should have been in the range of 28-32%. On this basis, the adjudicating authority once again rejected the claim of the appellant for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ER 312 and therefore, the export could not be allowed under the DEEC Scheme as it did not fulfil the terms and conditions of the advance licence issued under the said Scheme. 5. The learned consultant appearing for the respondent submits that the test report of the Deputy Chief Chemist dated 10.01.2001 indicates only the composition of Chromium at 26% and Nickel at 8.7% and is silent about the composition of other elements and therefore, the exporter was asked to forward a certificate of analysis for verification of the grade and they forwarded the same. The letter from the Deputy Chief Chemist to the assessing authority vide letter dated 14.2.2006 reads as under: "Seen the literature submitted by the exporter, there is no literature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pping Bill dated 1.1.2002. Details of account which were maintained in the factory regarding the receipt, issue, production and clearance of the final product clearly indicates that they had manufactured the wires out of wire rods conforming to grade ER 312. Since it has been accepted by the Customs at the time of import that the input wire rod conformed to the grade ER 312 therefore, the export product should also conform to the same specification as drawing of wires from the wire rods cannot change the composition of the product. The test report of the Chemical Examiner is incomplete as admitted by them as the Chemical laboratory does not have all the facilities for determination of all the constituents of the said product and in their ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also observed that in respect of the previous exports vide Shipping Bill dated 19.6.2001 of the same exporter the Customs have accepted that the export product conform to the specification applicable to grade ER 312. Again the Central excise authorities have allowed the respondent's rebate claim for the same Shipping Bill under grade ER 312 and the Central Excise records maintained by the party also substantiate their claim that what they have exported is conforming to the ER grade 312. 7. In the light of the evidence available by way of records and in view of the fact that the test report of the Deputy Chief Chemist is incomplete, the respondent has to be given the benefit of doubt and the lower appellate authority's order granting such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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