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TMI Blog2016 (3) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... assumes significance especially when the load port reports of testing by a reputed agency showed CSN of 1 and above. Commissioner has merely held that the appellant should have sought re-testing where the delay in handing over the test report was minimal and has not discussed the periods of delay but forget to consider that delay may lead to deterioration of the properties of coal including CSN values. He needs to indicate whether samples of coal have been retained and in what condition and should have clearly stated the delay that occurred in handing over the reports to the appellant in each case and the impact the delay would have caused if a re-test were to be done. The right of re-test may lose significance due to passage of time. Even if cross examination was not sought by the appellant, the Commissioner needs to counter the technical literature submitted by the appellant with his own supporting evidence. The Commissioner ought to have appropriately justified his finding on the issue that if the MMR value in the load port report is acceptable, then the CSN value should also be acceptable. Also he does not discuss the issue in respect of consignments for which such exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011). Appellant has however not claimed exemption under this Sl.No.66A. (iii) From 17.08.2011 onwards Coking coal means coal having mean reflectance of more than 0.60 and swelling index number of 1 and above (S.No 66A was deleted in Not 21/2002 and explanation against S.No 68 was amended vide Notification no 77/2011 dated 17.08.2011 read with corrigendum dated 25.08.11 ) 3. Appellant imported goods declared as corex coal and sought benefit of NIL basic customs duty in terms of Sl. No 68 to notification number 21/2002- Cus. The goods were provisionally assessed pending test. Samples were drawn and sent to the Customs Lab in Goa Custom House. On test, the CSN of the goods covered under these appeals was found to be 0 . Hence assessment was finalized denying the benefit of exemption and reclassifying the goods under tariff item 27011990 and levying basic duty @5% adv in place of NIL duty claimed by the importer. 4. The Ld advocate Shri Vipin Jain appearing for the appellant submits that The captioned Appeals have been filed against Orders-in-Appeal No. Goa Excus-000-App-001-19-14-15 dated 9.4.2015 to No GOA-EXCUS-000-APP-019-14-15 which disposed the Appeals filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is suggested that temperatures during storage be kept as low as possible (though above 32 degree F) and the samples be stored in an oxygen free or substantially oxygen free atmosphere, or under water 3 Deterioration of Coking Coal Quality in Samples and Stockpiles by Dr. Ross Leeder, et al : Coking coal is a perishable commodity as its quality properties can deteriorate due to exposure to air, increased moisture content and handling. These factors, which affect the quality of the coke product can occur during the sampling, mining, transportation, storage and utilization of these coals 4. Coal Geology by Larry Thomas Exposure of coal to weathering in atmosphere or by oxygenated ground water, results in oxidation of organic and inorganic constituents in coal. Oxidation reduces the coal quality by altering the chemical and physical properties in coal, in particular the Calorific value is lowered and caking is eliminated. 4.3 Appellant had, in the course adjudication, also questioned the manner in which samples were drawn, as also the method of testing adopted by the Chemical Examiner at the Customs laboratory in Goa. The adjudicating authority held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport shows CSN less than 2. ( i.e. 1.5, 1 and 0). Further, in one case of OIO 91/2013 the load port report shows CSN 0 . Therefore in these cases appellant has no case. 5.1. As regards retesting, the submission is that there is no violation of principles of natural justice because the respondent failed to avail the opportunity of cross examination. Reliance is placed on the judgment of Honble Apex court in the case of Commissioner of Customs New Delhi vs Punjab Stainless steel Industries 2001(1320 ELT 16 10 (SC) and Honble Madras High Court judgment in the matter of Shree Ganesh Steel Rolling Mills Ltd vs Astt Commissioner of Cus Chennai 2006(132) ELT 76. 5.2. As regards non-calculation of differential duty on the basis of final invoices in some cases, it is submitted that these invoices have been taken into consideration and demand has been re-quantified at the time of appeal as is evident from findings contained in para 20--21 of the order of Commissioner (Appeals) and appellant has not produced any evidence in support of their contention. 5.3. As regards difference in CSN values found on retesting of samples pertaining to Bills of entry not covered in the present di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inspire confidence in the procedures followed. 6.2. We note that the Hon ble Supreme Court in the case of Tata Chemicals Ltd. (supra) held that the words deems it necessary in Section 18 (1) (b) mean that the proper officer must have good reason to subject imported goods to a chemical test, otherwise the chemical analysis of imported goods done by the department is ultra vires of Section 18(b) of the Customs Act. This judgment needs to be considered by the Commissioner (Appeals) to arrive at a proper finding. 6.3 The Commissioner has not been able to justify why the test reports were not handed over to the appellant immediately but were handed over after long periods. The delay assumes significance especially when the load port reports of testing by a reputed agency showed CSN of 1 and above. Commissioner has merely held that the appellant should have sought re-testing where the delay in handing over the test report was minimal. The Commissioner has not discussed the periods of delay. Whereas the Ld. Advocate has submitted sufficient technical material to support the contention that delay may lead to deterioration of the properties of coal including CSN values. The Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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