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TMI Blog2013 (8) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... on were tested by Port Health Officer (PHO), Kakinada and he reported that the imported crude palm oil conformed to the standards laid down under para A17.19 of Prevention of Food Adulteration Rules, 1955 (PFA) and observed that the same should be released to Indian market only after refining to the level when it conforms to the standards laid down under para A17.15 of PFA. - The Chemical Examiner who examined the samples drawn from on board the vessel and also from the shore tank, reported that the samples had acid value of more than 10 and carotenoid concentration between 419 to 430. Since the acid value of the imported oil exceeded the maximum limit of 10 prescribed as per para A17.19 of Appendix B of PFA, assessments were finalized revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Food Lab are the competent authorities and not the Chemical Examiner. She submits that this is not correct and placed reliance on the decision in the cases of Kedia Overseas Ltd. v. CCE, Visakhapatnam [2010 (253) E.L.T. 142 (Tri.-Bang.)] and Arani Agro Oil Inds. Ltd. v. CCE C, Visakhapatnam [2010 (256) E.L.T. 627 (Tri.-Bang.)] to submit that this observation is not correct. 4. On the other hand, the learned counsel for the respondent submits that the Chemical Examiner is not authorized to decide whether the goods are of edible grade. He also submits that PHO report is binding with regard to importability of food items. According to Chemical Examiner s report, the acid value is marginally higher than 10 and this can be due to norma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the imported goods was done after 9 months of the importation whereas in the case of Kedia Overseas, it was done within 11 days from the date of drawal of samples. In the case of Arani Agro Oil Inds. Ltd. (supra) also, the Tribunal considered ratios of Sarda Agro Oils Ltd. and Ruchi Soya Industries Ltd. and thereafter came to the conclusion that Chemical Examiner s report has to be preferred. In the case of Shalimar Agro Tech, the Hon ble High Court of Andhra Pradesh -had taken a view that there was a time gap of more than 20 days between the first testing by the PHO and the second test by the Chemical Examiner. Further, the Tribunal also had taken note of the fact that at the time of loading at the port of export, the goods were tested b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Tribunal are in favour of the Revenue and not in favour of the assessee. 7. In the present case, on going through the records, we find that the samples were drawn by the officers of Customs House on 25-1-2005 and sent to the Chemical Examiner on 1-2-2005. It is not known on what date the Chemical Examiner conducted the examination since that.is not available in the report. The report simply gives the results of the tests and all the reports in respect of many samples have been signed on 23-2-2005 only. It is not necessary that testing is done on the same day of the report and after doing the test, the report may be signed later. On the other hand, it is also seen that the PHO s report is dated 29-1-2005 and the sample w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d since if that was so, on the basis of acid value, specifications would not have been given. As regards the claim of marginal variation, it has to be noted that the specifications do not provide for any margin of error and it has to be less than 10. 8. The importation took place on 25-1-2005 and goods were cleared under ex-Bond Bills of Entry from 29-1-2005 to 11-2-2005. The respondents were aware that samples had been drawn for conducting the test and being a regular importer, they would also be aware that the samples would be sent to Chemical Examiner for test. The goods were assessed provisionally and respondents executed a bank-guarantee for ₹ 46,15,000/-. There is no indication anywhere to show that the appellants made any ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the product is edible or not, the test by Chemical Examiner becomes an absolute necessity and when there is a contradiction between the two, it is for the assessee/importer to challenge the report or question the correctness by legal means to ensure that his interests are safeguarded. Appellants have not lifted a finger for two years. 9. Under these circumstances and in view of the precedent decisions of the Tribunal that Chemical Examiner s report can be relied upon and in view of the facts and circumstances of this case, we find that the appeal filed by the Revenue has merit and since the acid value is more than 10 in the imported consignments, the appellant is not eligible for the benefit of concessional rate. In the result, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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