9911796707
TMI Blog2012 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that National Metallurgical Laboratory is not a laboratory of the respondent's choice, but an authoritative institution to speak on materials like the impugned consignments. The remand order at the first instance itself was on account of the Revenue pointing out to the discrepancy between the respondent's test and the Revenue's report. As agreed to between the parties, the matter was once again referred to National Metallurgical Laboratory. When confronted with the error margin, the further plea for once again calling for further report from the Scientist, appears as a cry in vain. Thus, when a reading of the order of the Tribunal does not disclose any perversion in the finding, in the nature of absence of material on the factual f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 113(1) of the Customs Act and further the exporter was liable to pay penalty under Section 114/114A of the Customs Act. After receiving the reply, the proposal in the notice was confirmed. 3. As against the order of treating the export items as an non- alloy steel, the exporter came on appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), wherein it was found that the test reports on the nature of impugned goods obtained by the respondent herein from M/s. Kidao Laboratories contained different results from the report obtained from M/s. National Metallurgical Laboratory by the Revenue. In the circumstances, with the consent of the parties, the matters were remitted to the original Authority for fresh con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urable finding in its report dated 26.06.2010 in respect of 37 samples out of 76 samples. On re-testing, apart from 37 samples, 24 samples out of the balance were also cleared. Thus, 61 samples were found to have contained boron at 0.0008% and only 15 samples were found to have lower boron content in both the tests. Since the first test had already proved 37 samples as alloy steels, the same should not have been tested again. In any event, applying the tolerance limit of a conservative percentage plus 0.0006% to the 15 samples, it would be seen that even these claims merit to be accepted as having minimum content of 0.0008% of boron. The respondent pointed out that the adjudication order was passed without taking into account these facts. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any manner, go in support of the Revenue's case. 7. The Tribunal further pointed out that the accurate quantification of boron content in steel, although posed a special challenge on the customs classification all over the world, yet, the U.S. Customs had published a paper on "Determination of boron in steel by Emission Spectrometry", which shows that by employing Optical Emission Vacuum Spectrometric Analysis, boron content in alloy steel could be accurately determined on levels ranging from 0.001% to 0.0026%. Thus, when there is a test available to give accurate results, the method adopted by the Revenue indicating the error margin going upto 200% reflected on the poor facilities existing in the present administrative set up. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Standing Counsel appearing for the Revenue. We have narrated the findings of the Tribunal in detail in the preceding paragraph and we have no hesitation in agreeing with the line of reasoning of the Tribunal. 10. Alloy steel is defined in the import schedule based on HSN, as follows:- "Steels not complying with the definition of stainless steel and containing by weight one or more of the following elements in the proportion shown:- - 0.3% or more of aluminium - 0.0008% or more of boron - 0.3% or more of chromium - 0.3% or more of cobalt - 0.4% or more of copper - 0.4% or more of lead - 1.65% or more of manganese - 0.08% or more of molybdenum - 0.3% or more of nickel - 0.06% or more of niobium - 0.6% or more of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but an authoritative institution to speak on materials like the impugned consignments. The remand order at the first instance itself was on account of the Revenue pointing out to the discrepancy between the respondent's test and the Revenue's report. As agreed to between the parties, the matter was once again referred to National Metallurgical Laboratory. When confronted with the error margin, the further plea for once again calling for further report from the Scientist, appears as a cry in vain. Thus, when a reading of the order of the Tribunal does not disclose any perversion in the finding, in the nature of absence of material on the factual finding, we do not find any question of law arising out of the order of the Tribunal for admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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