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TMI Blog2015 (12) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that the exemption to coking coal under S. No. 68/68A of Notification NO. 21/2002-Cus would also be available to coal "suitable" for use in admixture with other coal for making coke. It was held that the mere adoption of a new technology enabling the use of coal without first converting the same into coke in admixture with other coal cannot be a ground for denying the benefit of the exemption. It was further held that the criteria regarding 1 CSN and 0.60 MMR, which were introduced in the Notification granting exemption to coking coal with effect from 1.3.2011, cannot be given retrospective effect. - coking coal imported by the appellant for its Corex Plant had weak caking properties with CSN of more than 1 and less than 3 clearly comes out from the statements of Shri AVRP Dasu, General Manager - 4MT (Iron Making) dated 19.9.2011 and of Shri B.M. Reddy, Deputy General Manager - 10MT (Iron Making - Quality Management Centre) dated 29.9.2011. The evidence resumed show that before approving the use of any soft/semi-soft/weakly coking coal from a particular mine, the same was first type-tested for its suitability for use in the Corex process. During the course of investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of CSN, only one reading of CSN was recorded. It has been held by the Hon'ble apex Court in the case of Tata Chemicals Ltd. It versus Commissioner [2015 (5) TMI 557 - SUPREME COURT] that if samples are drawn contrary to the provisions of law, the test reports cannot be relied upon. We realize that the testing does not pertain to the consignments in dispute. But having noted the difference in the results of internal tests by the appellant (not brought on record by revenue) and the testing in Govt Laboratory in the present case, the benefit of doubt must go to the appellants in view of our detailed findings from all angles. The onus was on Revenue in the preceding paras to disprove the appellant's own reports. Noting the totality of evidence in favour of the appellant, we do not agree with the findings of the Commissioner in confirming the demand of duty in respect of 21 bills of entry. - Impugned order is set aside - Decided in favor of assessee. - Application No. C/MA (Ors.)/96139/2014 &Application No. C/S/93023/2014 in Appeal No. C/85484/2014 and Application No. C/CO/91083/2014 In Appeal No. C/85484/2014 and Application No. C/MA (Ors.)/94269/2015 & Appeal No. C/85238/2014 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - answering the aforementioned two questions as under: 16. Having regard to the aforesaid discussion, our decision, with respect to the two questions of law, referred to us, is as follows: (i). In so far as question no. 1 is concerned, the same is answered in favour of the Revenue. The Tribunal, as indicated above, cannot examine the issue beyond the factum as to whether or not a decision has been taken by a Committee of Commissioners to institute the appeal. (ii) In view of our answer rendered qua question no. 1, question no.2 does not arise for consideration. In any event, in our discussion hereinabove, we have clearly indicated that the act of appending of signatures by the members of the Committee of Commissioners, would suffice, as long as, the record placed before them, contains the necessary material and the reasons for approving the action to institute the appeal. 1C. Both the MAs stand disposed as above. 2. The issue which draw our attention is whether the coals imported by M/s. JSW Steel Ltd (JSWSL for short), the appellant in appeal C/85238/2014, i.e. for use in Corex Furnace and declared as weakly Coking/Soft Coking/Semi Soft Coking/Corex Coal ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Notification was amended and an explanation was added to S. No. 68 of Notification 21/2002-Cus which was thereafter substituted on 17.8.2011 to provide that, for the purpose of the said exemption, coking coal means coal having max mean reflectance (MMR) of more than 0.60 and Crucible Swelling Index (or CSN) of 1 and above. 4. DRI initiated investigations into the coking coal imports. A Show Cause Notice was issued demanding Customs duty in respect of 151 consignments of soft/semi-soft/weakly coking coal imported by the Appellant between December 2006 to March 2011. DRI alleged that the coal imported by the Appellant was not eligible for the benefit of the exemption for coking coal, as the same was not actually used for coke making in the blast furnace but was instead used in the Corex furnace. It was alleged that as per the supplier of the Corex technology, the Corex process required non-coking coal, which is also how these coals were recorded in the Appellant's internal records viz. business plan, balance sheet, process flow chart, documents offered to SEBI for public issue purposes, etc. It was alleged that the expression soft/semi-soft/weakly coking coal had been coi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. 8.1 The issue is covered by the judgment of the Tribunal in their own case, reported in 2012 (284) ELT 680 (Tri-Chennai), wherein it was held that the exemption to coking coal under S. No. 68/68A of Notification NO. 21/2002-Cus would also be available to coal suitable for use in admixture with other coal for making coke. It was held that the mere adoption of a new technology enabling the use of coal without first converting the same into coke in admixture with other coal cannot be a ground for denying the benefit of the exemption. It was further held that the criteria regarding 1 CSN and 0.60 MMR, which were introduced in the Notification granting exemption to coking coal with effect from 1.3.2011, cannot be given retrospective effect. 8.2 It was submitted that the investigations clearly proved that the soft/semisoft/weakly coking coals were suitable for coke making in admixture with other coal as brought out in the statement dated 29.9.2011 of Shri B.M. Reddy, Deputy General Manager (Iron Making-Quality Management Centre). The investigations clearly established that the fines generated in the factory from the imported coking coals were, inter-alia, used as blends wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G7 or above And Table 2 of Indian Standard: 770-1977 shows that coal with Gray-King (LT) Coke Type, C-D-E which is weakly caking to medium caking and has CSN ranging from 1-4, is mainly used for blending for manufacturing coke. It was submitted that exemption to coking coal would apply to all species thereof and not alone to such coking coal which was actually used in coke making as was being contended in the Notice. Apex Court in the case of Gujarat State Fertilizer Co. v CCE 1997 (19) ELT 3 (SC), wherein exemption had been granted to fertilizer , held that the expression fertilizer is a genus which consists of various species of fertilizers such as chemical fertilizer, soil fertilizer, animal or vegetable fertilizer and that the exemption could not be limited only to a soil fertilizer. The ratio laid down by the Apex Court applies on all fours to the facts of the present case. 8.5 It is an undisputed fact, as is evident from the statement of Shri Madhu Ranjan, Vice President, R D as also the statement of Shri Raju Rangachar, Director, Rawmet Commodities Pvt. Ltd. dated 17.8.2011 that coal with weak caking property was required in Corex proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are: 9.1 Whereas blast furnace uses 85% coke and 15% coal as fuel, Corex Furnace uses 15-20% coke and 80-85% Non coking Coal as fuel. Power point presentation made by Shri R.T. Shrinivas Rao DGM, JSWSL at Wollongong, Australia on 25.10.2007 showed that Corex is the first commercially established and industrially proven smelting reduction process based on non-coking coal. Thus one of the major raw material used in the Corex Furnace is non coking coal. 9.2 During the period under reference, M/s JSWSL has not imported non coking coal for use in their corex furnace nor procured any non coking coal indigenously. The MOUs /Contracts/Agreements by JSWSL with suppliers for purchase of coking coal for manufacture of Coke for use in Blast Furnace are clearly titled as Coking Coal Contracts/Agreements. The specifications of these coals are matching with the specifications of 'Coking Coals' being procured by Rashtriya Ispat Nigam, SAIL etc. through international tenders/competitive bidding. These contracts also contain CSN and MMR. Whereas contracts for import of soft coking coal/corex coal/semi soft corex coal do not contain any such detail and are based on the thermal value. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications of thermal coal. Price entered into by M/s JSWSL in respect of supply of Weakly Coking/Soft Coking/Semi Soft Coking/Corex Coal is based on the API-4 Index of Argus/McCloskey's Coal price Index which is meant for thermal coal. This price Index has also been followed by M/s JSWEL for import of thermal coal. 9.4 Statements of Suppliers Shri Mahes Vaidya, DGM, Glancore India Pvt ltd, one of the suppliers of Coal stated that their principal company M/s Glancore International AG, Switzerland are supplying coking coal/steam Coal to M/s JSWSL, and M/s JSWEL. The coking coal contract and all relevant documents entered into by their principal company with JSWSL mention coking properties like CSN number, Mean Max reflectance (MMR) and fluidity for reference; whereas in case of steam coal contracts these parameters are not provided. Shri Raju Rangachar, Director of M/s Rawmet Commodities Pvt Ltd, a company engaged in providing support services to their principals viz IMR Metallurgical Resources AG, Switzerland for whom JSWSL/JSWEL are customers for purchase of coal stated that Coking coal is a coal having coking properties and used in metallurgical industry i.e. for man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 inter alia informed that generally the brand name of the coal sold by BHP Billiton from the originating mines is sometimes annotated with words such as 'hard', 'soft', 'semi soft', or 'weak' to give an indication of its generic properties and use; for instance Illawara Hard Coking coal, riverside Coking coal, Blackwaster Weak Coking Coal, Black Water Soft coking Coal etc; that such annotation or any other reference to the coal as 'hard' soft, 'semi soft' or 'weak' coal is merely a business description of such coals as is understood in general marketing parlance and developed over the decades by buyers and sellers in the international markets and is merely indicative and not determinative of the technical quality or specification of the coal; that 'Optimum' coal being one such coal whose intrinsic geological properties can find application in metallurgical as well as Energy Markets and when sold to M/s. JSWSL is named 'Bespoke Optimum Semi soft Corex Coal'. Thus depositions of overseas suppliers shows that: (a) The description furnished in the invoices issued by the overseas suppliers are only general in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or blending of Corex Coal fines with Coking Coal for coke making. Shri Arvind Raj Gopalan GM (Commercial) stated that the price of Soft Coking / Semi Soft Coking/ Corex Coal is based on API 4 index for coals originating from South Africa. That the Soft Coking / Semi Soft Coking/Corex Coal are imported by them for the purpose of use in Corex Furnace, PCI purpose and Steaming (Energy) Coal / Thermal Coal is imported for the purpose of use in boilers for power generation; that except the usage of coal there is no difference between the Steaaming (Energy) Coal / thermal Coal and Soft Coking / Semi Soft Coking / Corex Coal; that the nomenclature of the coal is based on the end use application and accordingly the suppliers of coals are furnishing their commercial invoices and other documents. 9.6 Brochure titled 'Competence in Iron making' of M/s. Siemens VAI Metal Technologies Gmbh Co., Linz, Austria indicates follows: Corex is an industrially and commercially proved direct smelting reduction process that allows for cost-efficient and environmentally compatible production of hot metal directly from iron ore and non-coking coal. The process was developed to industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Furnace for manufacture of hot metal. Details of coal imported for use in COREX Furnace and quantity of fines generated as per records of M/s JSWL show that in years 2009-10 and 2010-11 when their new power plant became operative, more than 50% of the Coal imported for COREX furnace has been sold as fines to M/s JSWEL. 9.11 The Contracts entered by JSWSL for import of Coals described as 'Soft Coking Coal' / Semi Soft Coking Coal/Corex Coal' are based on API 4 Index of Argus/ McCloskey's which is meant for Coal Price Index Report for Thermal Coal originating from Richards Bay Coal Terminal of South Africa. Similarly the pricing of thermal/steam coal are also based on the AP1 4. However, the pricing of coking coal import for their blast furnace was based on the pricing prevalent at the Japanese Steel Mills. The mine owner invoices showed the description as Coal, whereas the invoice of overseas supplier showed the same as Semi Soft Coking Coal admittedly without undertaking any operation viz. process/change. The actual invoices issued by the mine owner to the respective trader were not submitted to the Customs at the time of import. Investigation showed that som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order and needs no repetition. The matter needs examination from various perspectives to decide whether JSWSL mis-declared the description of the coal imported by them as 'Soft Coking Coal'/'Semi Soft Coking Coal' / weakly coking / 'Corex Coal', etc. and availed full duty exemption applicable to 'Coking Coal' falling under Customs Tariff Heading 2701 in terms of Notification NO. 21/2002-Cutoms dated 01.03.2002, as amended. The evidence relied upon by Revenue is four fold namely, the statutory and private documents of the appellant vis a vis the documents filed at the time of import, the statements of officials of the company, the statements of suppliers and lastly the technical literature on the subject presented by both sides. Before discussing the evidence, we reproduce the relevant notifications below: Notification No. 21/2002-Cus S. No. Chapter or Heading or sub - heading Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corex technology was non-coking coal. In our view though documents are indicative, the ultimate test would be the nature of the coal actually imported and not what is reflected in the business plan etc. If, in the ultimate analysis, what is imported is held to be coking coal actually imported and not what is reflected in the business plan etc. If, in the ultimate analysis, what is imported is held to be coking coal in terms of the notification, then the above documents would certainly support the case of Revenue. We find that the appellant have submitted copies of reports of the Customs Chemical Laboratory, and this is not disputed by Revenue, which indicate that in a majority of the cases what was imported was 'weakly coking' coal and in a few cases even coking coal. In the light of this fact, the statement of Shri Dasu General manager (Iron Making) that the use of the nomenclature 'non-coking' in certain records is to avoid mixing of Corex Coals with other coals, cannot be brushed away. During the cross-examination, in reply to specific questions he stated that he stated that 'the total coal that the company gets is either used in Corex or Coke ovens, so this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or both contracts is based on thermal value which is a parameter for non-coking coal. But the suppliers' commercial invoices showed the coal sold for use in Corex furnace of the varieties namely weakly coking coal/soft coking coal/semisoft coking coal/Corex coal. The defence of the appellant is that the expressions soft/semisoft/weakly coking coal have not been coined by them in connivance with the suppliers, but these expressions are in existence and recognized nationally and internationally. Therefore it would be useful to refer to some of the technical literature on the characterization and categorization of various kinds of coal. From the IS standards 770-1977, we find that in Table 2 of the standards, the bituminous coal is classified into categories such non-caking, weakly caking, medium to strongly caking, weakly to medium caking, strongly caking. And further in comparison with the IS standards 1353:1993 we note that the weakly caking, medium to strongly caking and weakly to medium caking categories have a CSN number which is greater than 1 whereas non-caking has a CSN less than 1. In the remarks column in table 2, against strongly caking coal, the purpose of utilization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription given by the Principals is coal. It cannot be concluded that the coal supplied was not semi soft coking coal. The fact remains that, as also stated by Shri Raju, the company had requirement for inferior quality coal for use in their Corex furnace. Therefore in our view it cannot be held that the coal supplied was not semisoft coking/weakly coking coal for use in the Corex furnace and that the invoices were manipulated in their description. A case of manipulation would have been made out only if the description in the invoices of the Principals had been 'non-coking coal.' In addition, it is to be noted that in a majority of cases, the Chemical Examiner himself had determined the imported coals to be weakly coking. 11.4 Revenue has also relied on the contracts and purchase orders to state that they did not mention the criteria of minimum CSN and therefore could not be said to be coking coal. The contention of Ld advocate is that the records seized from the hard disk of Shri Arvind Rajagopalan GM Commercial, show that the coal was being procured from specific pre-approved mines and the coal source was tied up to suitability for use in the Corex furnace; which mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on thermal value similar to the contracts of JSWSL for purchase of steam / thermal coal. To address this issue, we have to see whether such coal imported for Corex technology could be termed as soft coking/ weakly coking coal. We note that during the course of investigations, the hard disk of Shri Arvind Rajagopalan had been seized and sent to the Central Forensic Science Laboratory, Hyderabad. From the said seized hard disk record, a report dated 29.5.2008 tabulates the CSN of the various coals being used in the Corex process. The same is reproduced herein below for ease of reference: SBW Coal 1.5 Ensham Coal 1.5 Metropolitan Coal 1.5 Optimum Coal 1 Poitrel Coal 1.5 Total South African Coal 1 New South African Coal 1.5 Datong Coal 1 There is no challenge by Revenue to the above stated CSN values in respect of the coal imported from the mines by the appellant. We als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book Elements of Fuels, Furnaces and Refractories by Om Prakash Gupta in which the coking coal classification systems in USA Australia and Japan are given. Although the classification indicates various parameters, the parameter of CSN shows that in Japan the CSN of semi-coking coal is 1 to 2 and of medium coking coal is 2.5 to 4. The present case seems to be entirely built around documents such as the Contracts describing the coal imported either just as coal or as non-coking coal. But the evidence in the form of tests conducted by the Customs Chemical Laboratory in majority of cases indicated the CSN value as one or above and the reports declared the same to be weakly coking or coking coal. Government introduced the criteria of CSN one and above after the period of dispute. Both sides contend that this criteria cannot be applied for the period of dispute. To determine whether a coal imported is coking coal or not, there has to be some technical or scientific parameter to term coal as coking or non-coking. In the present case the only relevant parameter which has been discussed by both sides and is also figuring in the reports of the Customs Chemical Examination is CSN. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Coking coal, riverside Coking coal, Blackwater Weak Coking Coal, Black Water Soft coking Coal; that such annotation or any other reference to the coal as 'hard' soft, semi soft' or weak coal is merely a business description of such coals as is understood in general marketing parlance and developed over the decades by buyers and sellers in the international markets and is merely indicative and not determinative of the technical quality or specification of the coal; that Optimum coal being one such coal whose intrinsic geological properties can find application in metallurgical as well as Energy Markets and when sold to M/s. JSWSL is named 'Bespoke Optimum Semi soft Corex Coal'. According to us, even if it is a business description, it does give an indication of the type of coal imported. It indicates that such coal is produced in the mines from where it is sourced. And because no technical specifications are prescribed in the documents, we cannot agree that the coal imported will not be the coal described as produced in those mines. This fact also addresses the contention of Ld Senior Counsel that in the absence of technical parameters, the trade parlance usage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08-2011 did not prescribe end-use condition. The appellant have rightly relied on judgements which lay down the law that wherever end use is contemplated, the notification necessarily has to provide a mechanism for the same. Reliance is also placed on the Supreme Court judgement in the case of State of Haryana vs Dalmia Dadri Cement Ltd 1998 (14) ECR 292 (SC) holding that 10 We are unable to accept the submission of Mr. Bana that, in order to get the exemption it must be shown that the goods in question, namely, the cement supplied by the assessee in this case was actually used in the generation or distribution of electrical energy. It must be noted that the important words used in the relevant provisions are goods for use by it in the generation or distribution of such energy (emphasis supplied by us). On a plain reading of the relevant clause it is clear that the expression for use must mean intended for use . If the intention of the legislature was to limit the exemption only to such goods sold as were actually used by the undertaking in the generation and distribution of electrical energy, the phraseology used in the exemption clause would have been different as, for ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than that of the thermal coal. Argument of Special counsel is that the price difference between coking coal and thermal coal should be much higher in any case. Learned Special Counsel also drew attention to the fact that the coal was supplied to the appellant and steam non-coking coal supplied to JSWEL at the same price. The response of Ld advocate is that this is only one solitary instance. And that no evidence has been shown that the coal supplied was from the same source or the dates of contracting were the same; therefore the comparison is untenable. Reliance was placed by Ld Advocate on the cross-examination of Shri Raju who stated that there were differences in technical specifications of some parameters in the case. And the coal supplied to JSWSL is not necessarily mine specific. IN our view no matter the high price difference, comparison cannot be made between prime/hard coking coal and soft/semisoft/weakly coking as the two are not comparable. Notwithstanding these factual details, it is still not established that the coal imported is not soft coking coal or that it cannot be mixed with the coking coal in the blast furnace to produce Coke. We have noted that no end use con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coking. Therefore we reject the appeal of the Department that the Commissioner dropped demands wrongly. Tribunal in the appellants' own case Commissioner of Customs vs JSW Steel Ltd 2012 (284) ELT 680 (Tri-Chennai) held that in order to be eligible for the exemption, the criteria is not the actual use of the coking coal in Coke making but its suitability for such use. We find similar facts in that case. The allegation there was that the contract with the supplier namely CC Carbon Pvt Ltd Singapore was only for supply of Jellinbah PCI coal and not for supply of coking coal whereas the respondent(in that case) showed the description of the said coal as 'semi soft coking coal' in all relevant records with the sole intention of claiming it is as coking coal to take benefit of exemption under notification 21/2000 dated 1-03-2002. It was held by the Tribunal that 18. In the absence of a clear definition, we should go by natural meaning. One obvious natural meaning that can be given is that the expression means coal that is used for conversion into coke as argued by Revenue. We would have adopted such an interpretation but for the fact that the explanations in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x or Crucible Swelling Number of more than 2 (Sl. No. 68 of Notification No. 21/2002-Customs ibid). (ii) On getting further representation from the domestic steel industry that manufacturers using Corex, Fines PCI fuel injection technology could not avail of the benefit of exemption since they use certain 'weak' varieties of coking coal (having lower technical specifications compared to those prescribed), a separate entry was created during post-budget stage of 2011-12 to grant full exemption from basic customs duty to Coal having Swelling index or Crucible Swelling Number of 1 and above and mean reflectance of above 0.60, for use in the manufacture of iron or steel using Corex, Finex or PCI technology (s. No. 66A of Notification No. 21/2002-Customs ibid). This exemption was based on end-use. This was notified on 24.03.2011. (iii) Thereafter, a representation was received from new Zealand High Commission seeking full exemption from customs duty on imports of weak coking coal for manufacture of steel using blast furnace technology . When the matter was examined, it was seen that most of the established manufactures of steel in India were using conventional blas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;Coking Coal'; that as per the dictionary, 'Coking Coal' means the coal a very soft Bituminous Coal suitable for Coking; that as per the dictionary, 'Coking' means destructive distillation of Coal to make Coke; that from the above definition of Coking coal, coal used in manufacture of coke in Coke Ovens is called as Coking Coal; that in terms of the above definition also gies meaning of all coals which can form coke irrespective of the coke strength produced from the coal and other value can be termed as coking coals including the coals which use in Corex Furnace. When enquired specifically as to whether coke is manufactured in the Crex Furnace or not, Shri Dasu stated that in Corex Meltergasfier where the coal is fed from the top similar kind of reactions happening which are similar to that of Coke Oven and the coal is degasified in the absence of air and at an elevated temperature of greater than 1000 Centigrade; that after degasification, the Carbon and ash only remains in the form of cake/coke (which in generally term as 'char')' that the physical and chemical property of this char is similar to that of Coke, whose main function is to support th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kly coking/soft coking/mildly coking coals during the period in dispute. Therefore the benefit of the exemption would be available. 15. We have held, in respect of the demands dropped by the Commissioner, that the coal imported by the appellant which is soft coking coal or mildly coking coal will get the benefit of notification which grants exemption to coking coal. As regards the 21 bills of entry in respect of which the demand has been confirmed by the Commissioner on the basis that the CSN was found to be between 0 and 0.5, the contention of the learned advocate is that the criterion of CSN one cannot be given retrospective effect. We agree with this contention as already held by the Tribunal in the appellants own case in Commissioner Of Customs vs JSW Steel Ltd 2012(284) ELT 680 (Tri-Chennai). The other contention is that the test reports were never furnished to the appellant till the adjudication stage. Therefore the appellants never had the opportunity to rebut the findings of the tests. The results were communicated after many years during the course of adjudication. With the passage of time, even if it is available in adequate quantity and preserved in appropriate condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s much as against three readings of CSN, only one reading of CSN was recorded. It has been held by the Hon'ble apex Court in the case of Tata Chemicals Ltd. It versus Commissioner 2015(320) ELT 45 (SC) that if samples are drawn contrary to the provisions of law, the test reports cannot be relied upon. We realize that the testing does not pertain to the consignments in dispute. But having noted the difference in the results of internal tests by the appellant (not brought on record by revenue) and the testing in Govt Laboratory in the present case, the benefit of doubt must go to the appellants in view of our detailed findings from all angles. The onus was on Revenue tin the preceding paras o disprove the appellant's own reports. Noting the totality of evidence in favour of the appellant, we do not agree with the findings of the Commissioner in confirming the demand of duty in respect of 21 bills of entry. 16. In view of the detailed analysis above, we set aside the impugned Order to the extent it confirms the duty in respect of 21 Bills of Entry. Having set aside the duty demand, the question of confiscation and imposition of penalties against noticees does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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