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TMI Blog2015 (5) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... stioned, state that, at the very least, the documents produced do not inspire confidence for some good prima facie reason. In the present case, as has been noted above, the Revenue has never stated that CASCO’s certificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18(b) of the Customs Act. The admitted position on record is that the samples drawn were not drawn in accordance with law and were drawn with no regard whatsoever to IS 436. That IS 436 would apply to the facts of the present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India [1994 (12) TMI 81 - SUPREME COURT OF INDIA], where this Court held following Union of India v. Delhi Cloth & General Mills Co. Ltd. [1962 (10) TMI 1 - SUPREME COURT OF INDIA], that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution’s method should be applied. That this would apply to the Customs Act as well.Clearly the samples drawn by the Inspector in the present case, have been draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embla Coal and Coke, Australia. The contract specifically provided that the ash content was not to exceed 10.3% and that the sampling and analysis was to be done by an independent inspection agency of international repute, namely, M/s Cargo Superintendents Company (Asia) Pty. Limited (CASCO), at the loading port and that CASCO should give a certificate regarding analysis of the coking coal. In accordance with the aforesaid agreement, the appellants in Civil Appeal Nos.7439-7440 of 2004, namely, M/s. Tata Chemicals Limited imported 33462 metric tons and appellants in Civil Appeal Nos.7628-7629 of 2004, namely, M/s. B.L.A. Coke Private Limited imported 5000 metric tons of coking coal. Detailed sampling was done by CASCO while the coal was being loaded on to the ship and CASCO had meticulously followed British Standards equivalent to IS standards 436 and 1350. The two consignments were divided into samples of 3000 metric tons each and from each sample CASCO took samples weighing 470 kilograms each. The primary samples were passed through secondary sampling, crushing and tertiary treatment. 13 sample units were separately tested, their analysis report obtained and the average furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal filed to the Commissioner (Appeals) Ahmedabad, the Commissioner by an order dated 30.12.1997, set aside the order of the Assistant Collector in the following terms:- 10. In view of the above discussion and after going through the comments of the Assistant Commissioner, Customs, Jamnagar as discussed in para 5.3 supra, wherein he was asked to give his comments on the submission made by the appellants during the course of personal hearing. It is seen that the Assistant Commissioner has accepted all the points raised by the appellants and he has not been able to controvert any of their submissions. I come to the conclusion that the appellants have substantial force in their arguments and therefore I held that nothing can be added into the notification and when notification does not prescribe the method of analysis for ascertaining the ash content in the coal, it should be ascertained on as received basis. I rely upon the ratio of the decisions cited by the appellants in this regard. The CFRI and CRCL have conducted analysis to ascertain the ash content on gross air dried basis, in spite of clear instruction of the Asttt. Commissioner, Customs, Jamnagar to give the report on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with law and how ultimately the samples were found to contain ash at only 9.8% following the gross air dried method. He also referred us to Section 18 of the Customs Act and stated that since no fault had been found with CASCO s certificate, the entire sampling done by the customs authorities was invalid in law. He further went on to refer to the cross-examination of the Inspector who drew the samples and stated that the samples were drawn in the afternoon of 18.3.1991, the entire operation being completed by 1730 hours. No panchnama was drawn. 20 kilograms was taken from the shore and 20 kilograms from the vessel contrary to a minimum of 75 kilograms for six lots to be taken under IS 436. When cross-examined, the Inspector stated that he did not know about IS 436 and he further admitted that he put the samples in a plastic bucket which did not have any lid. He further went on to state that he had broken up the sampled lumps with stones and then put the resultant powder in containers. He further referred to the cross-examination of the Superintendent who had deputed the Inspector to carry out the samples who was equally in the dark about IS 436. Above all, he characterized a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, between the duty finally assessed and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then- (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of 20[the duty finally assessed,] the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. 13. The Revenue has grounded its case in Section 18(b) which provides that imported goods can be subjected to chemical or other tests for the purpose of assessment of duty thereon where the proper officer deems it necessary to so subject the imported goods. 14. In our opinion, the expression deems it necessary obviously means that the proper officer must have good reason to subject imported g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of India v. Delhi Cloth General Mills Co. Ltd., 1963 Suppl. (1) SCR 586, that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution s method should be applied. That this would apply to the Customs Act as well. IS 436 lays down:- 5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING 5.1 Sub-lots - For the purpose of sampling, the entire quantity of coal in a ship shall be divided into a suitable number of sub-lots of approximately equal weight as specified in Table 1. 5.1.1 A gross sample shall be drawn from each of the sub-lots and shall be kept separately so that there will be as many gross samples as the number of sub-lots into which the lot has been divided. 5.2. Sampling of coal from ships shall be carried out, as far as practicable, when coal is in motion. If it is taken on a conveyer, the gross sample shall be collected as per the procedure laid down in Table 3. If not, the gross samples may be drawn during loading or unloading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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