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TMI Blog2012 (11) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... evade payment on duty – in favor of assessee - C.S.T.A. No. 3 of 2011 - - - Dated:- 14-10-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri C. Shashikantha, Advocate, for the Appellant. [Judgment per : N. Kumar, J.]. The revenue has preferred this appeal challenging the order passed by the CESTAT which has declined to review the earlier order passed, where they have remanded the matter to the Commissioner to take fresh decision after a sample of the consignment already drawn is got tested by CRCL, New Delhi. 2. The assessee exported 22,000 Mts. of Iron Ore fines declaring iron content below 62% after drawing samples as per procedure vide S.B. No. 898 dated 20-8-2007. The Shipping Bills assessed provisionally a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion port, the iron content of the consignment was 61.44%, the difference between load port and destination port being 0.49% which is within accepted norms. The samples analysed by the Chemical Examiner at Cochin have shown iron content as 62.1% and the high variation in results is indicative of some error in sampling and testing. They requested the counter sample to be sent to CRCL, New Delhi for re-testing. Accordingly, the sample was sent to CRCL, New Delhi for re-testing. However, the CRCL, New Delhi pleaded their inability to give their opinion after testing on account of the fact that the samples were in torn condition stating that the request for testing of the duplicate sample needs to be approved by the Commissioner of Customs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for cross examination of the Chemical Examiner as held by the Apex Court and therefore they wanted modification of the earlier order. The said application also came to be dismissed. Aggrieved by the same the revenue is in appeal. 5. We have heard the learned counsel for the revenue. From the aforesaid material on record the difference in the iron content is hardly 0.1%. The declaration made by the assessee is given based on the report of the experts received both in India and outside India. The duty payable at Rs. 50/- PMT is for an iron content with 62%, if it exceeds 62% it is Rs. 300/- PMT. Now the difference which sought to be made out is hardly 0.1%. If a provision is made for human error this 0.1% is negligent. That apart when a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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