9911796707
TMI Blog2007 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the case records and various submissions made by the appellants including those urged at the time of personal hearing. I find that the benefit of notification is available for 'Metallurgical Coke' when imported by a manufacturer of Ferro alloys. Notification No. 4/2003-Cus., dated 3-1-2003 (amendment to notification No. 21/2002- Cus) reads as follows 'Metallurgical Coke' when imported by: (a) by a manufacturer of pig iron or steel using a blast furnace or COREX technology or (b) by a manufacturer of ferro alloys. There are two ingredients of the said notification (i) import of metallurgical coke & (ii) by a manufacturer of ferro alloys. As far as second condition is concerned, it is established that the importer is engaged in manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the test is that the 'tem is other than coke'. However, it does not specify what the product is, if it is not coke'. The chemical lab has not given any clear cut findings. (sic) answered. Similarly. CRC'L, New Delhi in their report in respect of consignment imported vide IBE No. 200432 dated 4-4-2003, stated that the sample is 'Other than Coke'. The report reads. "The total moisture content (as received) 5.14% by weight Percentage volatile mailer (air dried basis) 11.86% by weight Percentage Ash content (air dried basis) 6.3% by weight. In view of above the sample under reference is other than coke". 7. Further, it is also not understood if the goods on testing has been found to be other than coke, then how the learned Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lts on the samples. The appellants specifically indicated that when the sample has been tested on dry basis, the results of the carbon content, ash content and volatile matter do not add up to 100%. The deficiency is made good by the moisture content which is out of place and context when the test has been conducted on dry basis. This inaccuracy in the matter of testing the sample was specifically brought to the notice of the Commissioner vide the appellant's letter dated.15-6-2004. There are many un-answered questions and conclusion have been drawn on presumptions. Test report is very vague. Whether the department chemical lab is not equipped to categorically state the exact nature of the goods or did not specify the same for some inexplic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination and to pass appropriate order basing on the chemical examination report. Hence, the case is to be remanded back to the adjudicating authority for de novo adjudication. While remanding the case back for de novo adjudication, I have relied upon Honourable High Court of Ahmedabad's Order in CCE, Ahmedabad-I v. Medico Labs [2004 (173) E.L.T. 117 (Guj)], wherein the issue of power of Commissioner (Appeals) for remanding the case for de novo adjudication after the amendment of Section 35A(3) of Central Excise Act, 1944 was discussed, and it was held that even after amendment, which has come into force with effect from 11-5-2001, powers of remand by allowing the appeal of the Commissioner (Appeals) have not been taken away specially. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist. Likewise similar view has been expressed in the case of Maheshwari Mills Ltd. v. CCE, Ahmedabad [1995 (76) E.L.T. 114 (T)]. 3. Learned Counsel submits that the Commissioner (Appeals) has rightly remanded the matter for re-test as the test reports were vague. Hence the appeal filed by the department is not sustainable. 4. We have carefully considered the submission and have perused the extracted portion of paras 6 & 7. It is clearly seen that the Commissioner has given a categorical reasons as to why the test reports are not acceptable. He has also noticed that the assessee had produced inspection certificate issued at the port of loading by various agencies such as S.G.S., BSI Inspectorate, International Inspection & Consultancy in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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