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TMI Blog2019 (11) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the case. The only option left with the Adjudicating Authority was to get the retest done and since it was not possible, the earlier test report could not have been relied upon for passing the de novo adjudication order. Needless to say that the first appellate order dated 27/07/2009 whereby the matter was remanded to the Adjudicating Authority was accepted by the Revenue and no appeal was filed against that. The entire adjudication order is not sustainable only on the grounds that the same was passed only by relying the earlier test report and the opinion of the Chemical Examiner. As we opined that the test report after the first appellate order became nonest and the same could not have been relied upon. We also point out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the provisionally assessed value. Samples of the imported goods were sent to Chief Chemical Examiner, Customs Laboratory, Kandla to ascertain the parameters like total moisture ARB, Ash, ADB, Sulphur ADB, Volatile material ADB and Gross Calorific Value. Testing of the samples revealed the results as per col. Nos. 4,5 6 of the table hereinabove. Relying on the test results that the samples tested were other than coking coal , the bills of entry were finally assessed vide Final Assessment Orders denying the benefit of the Notification No. 21/2002 (Sr. No. 68) and charging 5% Basic Customs duty as per Sr. No. 70 of the said notification which resulted into the impugned demand of duty and interest under section 18(3) of the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent and, therefore, they are not eligible for exemption under Sr. no. 68 of Notification no. 21/2002-Cus dated 01/03/2002. He submits that the entry of the exemption notification exempts coking coal of ash content below 12% . He submits that irrespective of Ash content the good should be coking coal and it does not clarify as coking coal, it will come out of the purview of the said Sr. no. 68 of Notification no. 21/2002-Cus dated 01/03/2002. The learned Commissioner (Appeal) has erred in setting aside test report and technical opinion of the Chemical Examiner, Custom Laboratory, Kandla by simply relying on the load port report given by the private agencies. It has been held that the Chemical Examiner reports as well as subsequent opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without carrying fresh retest, the statement that the CSN is less than 3 is absolutely without any basis. Therefore, the Commissioner (Appeal) has rightly rejected the test report as well as the subsequent report of the Chemical Examiner. He submits that in the identical case, the exemption was granted in the various following judgments: 1. JSW Steel Ltd. vs CCE 2015 (12) TMI 1389-CESTAT 2. Uttam Galva Metallics Ltd. vs CCE 2019 (4) TMI 1703-Cestat 3. CC vs JSW Steels ltd 2013(1) TMI 301- CESTAT 4. Adani Exports Ltd. Vs CC 2010 (249) ELT 93 (T) 5. Terapanth Food Ltd. vs CCE, 2010 (262) ELT 428 (T) 6. Taurion Steel Co. Pvt. Ltd. vs CCE, 2009 (241) ELT 390 (T) 4. We have ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at Kandfla was cleared by CH Kandla as Australian Coking Coal without raising any objection as to its eligibility for exemption which cannot he ignored in this case. However, I reject the contention of the appellant that the samples were not drawn in their presence as the adjudicating authority has clearly brought out in the impugned orders that the samples were drawn in the presence of authorized representative of the appellant whose stamp and signature was available on the examination report. However, as the Assessments were finalized on the basis of the test report which itself was incomplete and by denying the request of the appellant for retesting of the samples, I set aside the impugned Final Assessment Orders and remit the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The only option left with the Adjudicating Authority was to get the retest done and since it was not possible, the earlier test report could not have been relied upon for passing the de novo adjudication order. Needless to say that the first appellate order dated 27/07/2009 whereby the matter was remanded to the Adjudicating Authority was accepted by the Revenue and no appeal was filed against that. As regard the case by the Adjudicating Authority, it was observed that the Chemical Examiner in the opinion dated 13/10/2010 stated that test results of sample in reference shows the CSN less than 3. Hence, the goods are other than coking coal . On perusal of the test report, we find that only two parameters i.e. total moisture content = 2.5% ..... X X X X Extracts X X X X X X X X Extracts X X X X
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