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TMI Blog2011 (5) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... ative samples of the consignments were drawn and sent for chemical analysis to the Chemical Examiner, who in a report dated 25-5-2004, reported the Fe content as 68.4%. At the request of the exporter, the samples were got retested at the Central Revenue Control Laboratory (CRCL), New Delhi. The CRCL reported the Fe content as 67.3%. The EXIM Policy 2002 - 2007 had restricted export of iron ore containing Fe above 64%. From these facts, it appeared to the assessing authority that the consignment in question was presented for export by the appellant in violation of the EXIM Policy provisions. On this basis, a show cause notice was issued on 13-12-2005 to the appellant under Section 124 of the Customs Act for confiscating the goods under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel has also referred to another test report of M/s. Mitra S.K. Pvt. Ltd., which was obtained by the party on their own. It is pointed out that the Fe content reported by M/s. Mitra S.K. Pvt. Ltd. was 64.99% coming within the ambit of the export licence produced by the appellant. The counsel has also referred to para 19.4 of the Commissioner s order, wherein certain amendments to the contract dated 11-5-2004 were discussed and certain observations were made against the exporter. It is submitted that Para 19.4 embodies a new case framed by the adjudicating authority. 3. We have also heard the learned SDR, who has filed parawise comments on the grounds of the appeal. These written submissions are accompanied by a few document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposed action. The adjudicating authority, on its part, rejected both the test reports after holding that the samples drawn for test were not representative in character on account of incorrect method having been used for drawing the samples. The relevant findings of the learned Commissioner are to be seen in paragraph 14 of the impugned order, which reads as follows : 14. As against the procedure laid down in the IS, method followed by Customs officers was to drawn a sample of about 2 kgs from all the four corners and from other parts of the heap of the cargo at random with the help of a sampling scoop. It is not difficult to envisage that in the case of the subject consignment of 39,650 MTs of Iron Ore Fines, the sample drawn in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner s order on the ground that her findings against the party under Sections 113 and 114 of the Customs Act are beyond the scope of show cause notice. In the result, the impugned order is set aside and this appeal is allowed. 5. It appears from the submissions made by the learned SDR and from the documents produced by him that the Revenue could have framed a wiser case in the show cause notice. The learned SDR has submitted inter alia that enough documentary evidence is available with the department to impose a penalty on the appellant under Section 114 of the Customs Act on the ground that they rendered themselves to such penalty by rendering the goods liable to confiscation under Section 113 of the Customs Act by presenting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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