9911796707
TMI Blog2007 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. 2.Heard both sides. 3.The relevant facts, in brief are, as follows :- (a) A vessel carrying 1000 MTS in bulk of cotton seed oil (edible grade) arrived on 9-2-2000 and the Customs Boarding Officer and Port Health Officer during ullage survey drew samples for analysis on the same day. (b) Sample was sent by the Customs officer to Chemical Examiner based at Kandla Customs House and the test report dated 29-2-2000 indicated the free fatty acid (FFA) content as 0.1% was received. (c) The sample was sent by the Port Health Officer to Food and Drugs Laboratory, Vadodara and the report dated 10-2-2000 indicated the acid limit as is 0.18% and with opinion that the sample confirms to the stands and provisions laid down under the Prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns :- (i)The report dated 10-2-2000 of the Food and Drugs Laboratory and the report dated 29-2-2000 of the Customs House Laboratory of Kandla confirm to the specification that the FFA content is less than 0.5%. (ii) The request of the appellant for re testing at a private laboratory was not acceded to by the department vide their letter dated 10-10-2000. However, the remnant sample was sent for further testing to the Director of Central Revenue Control Laboratory, New Delhi and he vide his letter dated 18-4-2001 has confirmed that the FFA calculated as oleic acid is 0.1% by weight. (iii)When they imported the consignment in February, 2000, there was no requirement that the FFA content should be at least 0.5%. This requirement in the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be issued only within 6 months from that date as held in the case of M/s. Punjab Stainless Steel Industries [2000 (122) E.L.T. 428 (Tribunal)]. The attestation dated 21-8-2000 in the test report dated 29-2-2000 is clearly a cover up operation to demand duty invoking extended period. (vii) Section 144 of the Customs Act specifically provides for drawal of sample in the presence of the owner and in their case the owner was not present at the time of drawing the sample. They were aware of the drawal of sample only when show cause notice was received by them. Further, there is nothing on record to show that the sample was drawn in the presence of the owner. Further, the forwarding letter of the test memo to the chemical examiner also does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer. These can be done by the customs house agent duly authorized by the importer. The importer could be represented by his authorized representative while sample is drawn. If the import is by a Public Ltd. Company, the owners, namely the share holders cannot be present personally. The company has to be necessarily represented by an authorized person. In this case, the presence of the importer's authorized representative has been recorded by the Original Authority in his order-in-original and this fact has not been disputed. Therefore, the contention that sample has been drawn in violation of provisions of Section 144 is not acceptable. 6.3It is seen that the appellant has claimed the benefit of Notification No. 16/2000 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant. It is not disputed that the appellant executed PD bond and that the samples were drawn for the purpose of testing. Therefore the assessment is clearly provisional. The submission that as the date of the test report was 29-2-2000, the same was available to the assessing officer on the date of assessment cannot accepted as it has not been shown that the report from the chemical examiner from Kandla has indeed been received by the assessing officers before the assessment was taken up. 6.6Once the assessment is provisional the clock stops for the purpose of limitation. The time starts running only after the finalization. The demand of differential duty can be made after the finalization. In this case, the proposal has bee made both fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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