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TMI Blog2015 (10) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in question is perishable in nature – Also adverse test reports were supplied to applicants with inordinate delay – In said circumstances, adverse test report cannot be relied in light of load port certificate showing CSN is one or more –Purchase contract shows that applicants have asked for supply of coal as load port certificate having CSN of one or more – In case of Adani Exports Ltd. v. Commissioner of Customs, Jamnagar [2009 (8) TMI 439 - CESTAT, AHMEDABAD] Tribunal held that without discarding load port certificate, test report of Chemical Examiner is not acceptable – Therefore, non-supply of adverse report to applicants in time is violation of principles of natural justice – Claim of applicants with regard to classification of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 21/2002-Cus., dated 1-3-2002 and in 3 Bs/E, there is a dispute on rate of duty and in 5 Bs/E there is a dispute on classification. 19 Orders-in-Original were passed in respect of the 23 Bs/E and the applicants filed 19 appeals along with stay applications against the said Orders-in-appeal. The applicants imported coal and filed Bills of entry declaring the goods as Bespoke Optimum Semi Soft Corex Coke . The goods were assessed provisionally and cleared against Provisional Duty Bond, on payment of duty including cess on the declared value of the goods. The provisional assessments were finalized by the adjudicating authority denying the benefit of Notification claimed by the applicants, consequently, demand of duty. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately after its receipt from the chemical examiner. Therefore, the said report is not reliable. Further it is submitted that the applicants have placed the purchase order for coking coal having CSN one or more and the supplier supplied the goods and there is a Load Port Certificate which also confirms the goods have been supplied as per the purchase order i.e. CSN is one or more. It is further submitted that the applicants themselves are having their In-house laboratory, as per ISO-9001:2008 certified and after importation of the goods they have conducted test in their In-house laboratory which also confirms the goods have been supplied as per the purchase order i.e. CSN is one or more. Therefore, the report of the chemical examiner, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed that at this stage, waiver of pre-deposit of the duty is to be granted and appeals are to be heard on priority basis. 4. On the other hand, the ld. AR strongly opposed the contention of the ld. counsel and submits that in this case, the report was asked from the Dy. Commissioner of Customs, Marmagoa, who submits that the applicants are regular importer and out of 135 consignments only in 25 cases the CSN is Zero out of which 23 Bills of Entry are the subject matter of the present appeals. In other cases, the CSN was found to be above one. Therefore, the report of the Chemical Examiner is reliable and the same is acceptable. Further, the applicants have not sought for any re-test of the samples. In these circumstances, they have lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemical Examiner is not acceptable. Therefore, non-supply of adverse report to the applicants in time is in violation of principles of natural justice. Revenue cannot take benefit of their own wrongs as the adverse report was required to be supplied immediately to the applicants. 7. We further observe that the claim of the applicants with regard to classification of steam coal instead of coking coal before finalization of the provisional assessment which may be resulted in refund of ₹ 23.08 crores has not been considered by both the lower authorities. 8. In these circumstances, the applicants have, prima facie, made out a case for complete waiver of pre-deposit of duty. Accordingly, we waive the requirement of pre-deposit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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