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TMI Blog2014 (12) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1993 almost two years after the samples were drawn. There is nothing on record to show that the samples, which were drawn, were kept in airtight containers or the samples were drawn in accordance with ISI 436 prescribed for drawal and testing of the samples. In other words, there is no evidence adduced by the Revenue to show that the samples were representative and the sample could not have deteriorated with the passage of time. The Chief Chemist who was cross-examined had also accepted that only the samples kept in airtight containers would not deteriorate. However, there is no evidence forthcoming in this regard adduced by the Revenue. Benefit of doubt has to go to the appellant as the Revenue has failed to discharge the burden cast on it to show that the appellants are not eligible for the benefit of exemption Notification No. 35/90- Cus - demand of customs duty has been confirmed by the adjudicating authority under Section 28 of the Customs Act which is incorrect. If the contention of the department is that the goods were assessed provisionally earlier and they are being finally assessed now, then the duty demand should have been confirmed under Section 18 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the phosphorous content was found to be less than 0.035% on the basis of colour test comparison method. Accordingly, the Bills of Entry were finally assessed and it was observed that there is no difference between the provisional assessment and the final assessment. The Bill of Entry no. 57 was finally assessed on 16.7.1991 and Bill of Entry No. 87 was finally assessed on 16.7.1992. As regards Bill of Entry No. 58, it is not known when it was finally assessed. After the final assessment, the assessed Bills of Entry were forwarded to Bombay Audit for the post audit and Bombay Audit Team stated that test report does not indicate the phosphorous content and, therefore, the benefit of Notification No. 35/90 could not be extended. Thereafter, the remnant sample available with the Customs was forwarded for retest to the Central Revenue Control Laboratory (CRCL), New Delhi and the said laboratory found the phosphorous content to be 0.058% in respect of Bill of Entry No. 87 and 0.0589% in respect of Bills of Entry Nos. 57 and 58. The samples were tested by the CRCL, New Delhi in October, 1993 even though the samples were sent for retesting in February, 1993. Based on the test report, less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contents and is not a quantitative determination. We are therefore of the view that the department should make available to the appellant the procedures that were followed with regard to sampling and the method that were followed is testing samples, so that it can be determined whether the two Indian Standard specifications in question have been complied with, and that the appellant should, if it considers necessary, be permitted to question the methodology of sampling and testing However, this direction was not followed and the matter came back again and this Tribunal vide order dated 28.8.2007 once again remanded the matter back to the adjudicating authority for complying with the directions contained in order dated 29.10.2001 and in pursuance thereof, the impugned order has been passed. 4. The learned Counsel for the appellant submits that in the present case, the adjudicating authority has not complied with the direction of this Tribunal wherein specific directions were issued to the adjudicating authority to furnish to the appellant the procedures adopted for drawal of sample and the method of testing. Despite the specific direction, the adjudicating authority ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the cross-examination, the Chief Chemist, who had tested the samples could not confirm that the samples which he had received were sealed in airtight containers. In these circumstances, the reliance placed by the adjudicating authority on the test report of Chief Chemist, CRCL cannot be relied upon. He also relies on the decision of this Tribunal in the case of Rajkot Engineering Association - 2000 (123) ELT 978 (Tri), wherein it was held that if the samples are not drawn as per the procedure prescribed by the ISI standards, reliance cannot be placed on such test reports. Reliance is also placed on the decision of this Tribunal in the case of Adani Exports Ltd. - 2010 (249) ELT 93, wherein the samples were sent belatedly for testing and proper procedure was not followed in drawal of samples. In those circumstances, this Tribunal held that reliance on test reports of CRCL is not permissible. In view of the above, he pleads for setting aside the impugned order and allowing the appeal. 5. The learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, submits that in the present case, though the Bills of Entry were assessed finally in 1991, the provisional duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in airtight containers, the result of such samples can be mis-leading and cannot be accepted. The same view was taken by this Tribunal in the case of Adani Exports Ltd. (supra). 6.3 As regards the reliance placed by the Revenue on the Tata Chemicals case, the facts are distinguishable. In that case, there was no evidence led by the respondent therein that phosphorous content was less than the prescribed limits. In the present case, the appellant importer has given three test reports, two by international agencies and the third one by an approved Indian agency wherein the samples were tested before export from China and immediately after the goods were imported into India and all these test reports, confirmed the phosphorous content to be less than 0.035% by weight. 6.4 In view of the foregoing position, the benefit of doubt has to go to the appellant as the Revenue has failed to discharge the burden cast on it to show that the appellants are not eligible for the benefit of exemption Notification No. 35/90- Cus. 6.5 We also notice that the demand of customs duty has been confirmed by the adjudicating authority under Section 28 of the Customs Act which is incorrect. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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