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TMI Blog2016 (11) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... ould appear that the concessional rate is intended to be accorded to the crude form to incentivise value addition in the domestic territory. The caroteniod content is, therefore, a reasonable test for ascertaining the form in which ‘palm oil’ is imported. No evidence has been brought on record to show that it was, indeed, refined bleached deodorized palm oil’ that was imported. The reduction of carotenoid content, such as it is, owing to efflux of time has not altered the form of imported ‘palm oil’ to refined and the process of refining, bleaching and deoderizing after import is unavoidable. To the extent that there is no evidence that appellant did not have to carry out the refining process before using it in the manufacture of their bake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pte Ltd, Singapore from Belawan, Indonesia. 2. The imported goods were subject to provisional assessment against a test bond and the samples drawn were sent for testing to the Deputy Chief Chemist who, by report no. 180104-VII dated 6th May 2004, certified the cartenoid content to be 393.3 mg/kg. Consequently, a 'less charge demand' for recovery of ₹ 43,90,845/- was confirmed along with interest thereon vide order dated 6th September 2006. On appeal, the impugned order upheld the decision of the lower authority and, hence, this proceedings. 3. Before the first appellate authority, M/s Britannia Industries Ltd had cited the amending notification no. 7/2005-Cus dated 4th February 2005 which, having reduced the floor content of carote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was corrected by a subsequent amendment, the conditions in the original notification, despite being impossible to fulfill, cannot be deviated from. On the propriety of the procedure for drawal and testing of samples, it was held that the lapse of time between shipment and testing was not of such magnitude as to lend credibility to claim of the appellant that reduction of the caroteniod content is a natural phenomenon. The failure of the appellant to take advantage of the permission accorded for cross-examination of the testing official was held to the disadvantage of the appellant who could easily have furnished the required questionnaire. The adoption of internationally acclaimed standards for the test by the Deputy Chief Chemist, as elabo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai [2010 (259) ELT 573 (Tri-Mumbai)]. 7. Having heard both sides and perused the various documents, we find that the determinant in this dispute is a factual one, i.e. the caroteniod content in the imported 'crude palm oil' which, at the time of import, was prescribed to be at least 500 mg/kg. We are unable to accept the contention that the subsequent amendment reducing the floor to 250 mg/kg can be implemented with retrospective effect. The appellant may be justified in trying to lead us to the conclusion that this is so but, in the absence of any authentic explanation of the compulsion to so alter the threshold, we can, in accordance with the general principle that exemption notifications are to be given a strict construction, merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitute. The frailties adduced by the appellant, viz., presence of importer at the drawal of samples, the drawal of samples from every tank, the storage of samples and the test method, which are mere assertions and disputations by persons who had nothing to do with the samples, does impact the credibility of the test report. 9. The appellant had produced the analysis of M/s Saybolt effected at load port that, with a reported content of over 500 mg/kg which, though marginal, would meet the norms prescribed for concessional rate of duty. We find nothing on record to controvert that result. And the sole challenge to that can only have been a credible test result from the Deputy Chief Chemist which is now not in the realm of the possible. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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