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TMI Blog2019 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... ority could not have relied upon the said document. It is also to be noted that by relying upon the Dy Chief Chemist’s report at the 1st appellate proceedings, appellant herein is deprived of his right to seek the retest of the samples, if any, in order to defend his case. Appeal allowed by way of remand. - C/572/2011-DB - A/30218/2019 - Dated:- 6-2-2019 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Mr Vishal Agarwal, Adv for the Appellant. Mr. Bhanu Kiran, A.R. for the Respondent. ORDER Per: M.V. Ravindran. This appeal is directed against order-in-appeal No. 12-2010 (G) Cus dated 06/12/2010. 2. The relevant facts that arise for consideration are: Appellant fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption from customs duty under the Notification as this coal is used in new corex technology. He would submit that identical issue came up before the Tribunal in Mumbai in the case of the appellant as reported at 2016(343) ELT 717 (Tri-Mum)] wherein it was held that the load port report can be considered for the purpose of arriving at a conclusion as to whether the coal is coaking coal or non-coking coal. It is his further submission that the entire investigation in this case as well as the earlier cases were out of investigation initiated by DRI who found the CSN of various coal mines in one of the executive s lap tops. It is his submission that DRI s case was, coal which is imported by the appellant which is having less than 2 as CS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings, appellant herein is deprived of his right to seek the retest of the samples, if any, in order to defend his case. Similar situation prevailed in the issue which was before the Tribunal in Mumbai Bench. On this, the Bench in paragraph No 14 has recorded as under: 15. We have held, in respect of the demands dropped by the Commissioner, that the coal imported by the appellant which is soft coking coal or mildly coking coal will get the benefit of notification which grants exemption to coking coal. As regards the 21 bills of entry in respect of which the demand has been confirmed by the Commissioner on the basis that the CSN was found to be between 0 and 0.5, the contention of the learned advocate is that the criterion of CSN on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other private records to suit their case. In the face of two differing reports, the obvious way out would have been to test the samples again. But this is not possible now for reasons aforesaid. At the same time we find that the Ash content, which was the only criterion in the notification as it stood during the period in dispute, was met in the case of 21 B/Es. 6. In our view, the above would have been enough for us to dispose of the appeal. However, as the bills of entry are still provisionally assessed, we find it necessary to remand the matter back to the adjudicating authority to finalise bills of entry taking on record various documents that may be produced by the appellant in support of his claim that CSN of the coal imported is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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