9911796707
TMI Blog2007 (12) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... ember (T) [Order per : S.L. Peeran, Member (J)]. - The revenue is aggrieved with the Order-in-Appeal No. 3/06, dated 23-1-06 by which the Commissioner (Appeals) has remanded the matter to the Original Authority to take samples of the metallurgical coke and send it for re-testing to find out the exact nature of the goods imported. The finding recorded by the Commissioner in paras 6 7 is reproduced hereinbelow : "6. I have carefully gone through 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.8 8.7 401078 dt 28-5-2004 3.03 11.26 6.72 401079 dt 28-5-2004 3.77 11.38 3.00 The test report in respect of IBE No. 401078 dated 28-5-2004 reads as follows : "the sample is in the form of black lumps of irregular shape having following characteristics. (i) Moisture (air dried) 3.03%; (ii) Volatile matter (dry basis) 11.26%; (iii) Ash (dry basis) 6.72%. The sealed ramnant returned (Please see note). (Note: According to the literature supplied by the party, tests conducted and literature available in the laboratory. The sample u/r is other than coke". The finding given by the test is that the 'tem is other than coke'. However, it does not specify what the product is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under IS 439: 1989, the same cannot be categorized as semi coke. Further, when there is no condition prescribed in the notification that the impugned goods should confirm to IS 439:1989 specification, there is no warrant for the adjudicating authority to interpolate a condition of its own volition when notification allows benefit to all types of metallurgical coke. Notification has to be read strictly in terms of the words mentioned therein, in its true letter and spirit and is strictly to be read as it is. Further, the appellant in his submissions has contended that they specifically challenged the method of analysis and reporting of results on the samples. The appellants specifically indicated that when the sample has been tested on dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remaining samples. The same should be sent for re-test with clear cut reference and to confirm whether the product fits into the broad description of metallurgical coke or not. If not, what is the exact nature of the product, to some reputed lab outside the department preferably to two different labs, university department, or IIT,. S.G.S., or any other Institute which is equipped to test the impugned product. The department, after analyzing all the test reports, should arrive at a reasoned conclusion. Therefore in my view, the ends of justice would be met if the matter is remanded back to the adjudicating authority for a fresh chemical examination and to pass appropriate order basing on the chemical examination report. Hence, the case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-7-2005, passed by the Assistant Commissioner of Customs, Visakhapatnam is set aside. The appeal filed by the appellants is allowed by way of remand back for de novo consideration on the grounds discussed in paras 6 and 7 above;" 2. Revenue contends that the order is not sustainable as he should not have directed the authorities to re-test the matter as the test reports were already available, learned DR relies on the judgments of the in the case of Oswal Woollen Mills Ltd. v. CC, Madras [1997 (91) E.L.T. 531 (S.C.)]. The Apex Court in the cited judgment has held that the assessee had not given any specific reasons for carrying third test by the Chief Chemist. Likewise similar view has been expressed in the case of Maheshwari ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
