9911796707
TMI Blog2020 (6) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... a diametrically opposite stand with respect to the same consignments and the same standards while determining the eligibility of the exemption notification. In our considered view, such as a contradictory stand is not sustainable. The assessing officer cannot hold that the consignment meets standard as per A17.19 while deciding the importability and hold that it does not meet the same standards while deciding the eligibility of the exemption notification. It would have been a different case if the standards prescribed for the exemption notification are different from that for determining the importability but such is not the case - Revenue, having accepted that the consignments meet standards A17.19 and hence are edible and accepting their importability cannot take a stand that the consignments do not meet the same standards and are therefore not edible, while deciding the eligibility of exemption notifications. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid condition no. 5 is as follows: If the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Thus, the requirements with respect to these three bills of entry are that the acid value should be more than 4% and carotenoid value must be in 250 to 2500 per mg. Apparently, the importer has registered himself with the customs under the Customs (Import of Goods on Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 as required. However, in respect of both the notifications, the palm oil has to be of EDIBLE GRADE. 3. The dispute which arises in these cases is with respect to the test reports sent by the chemical examiner of the Customs Department and the reports given by the Port Health Officer. The Port Health Officer had drawn samples and certified that the oil is fit for human consumption while the chemical examiner had in his reports reported as follows: Acid value is 10.0 Total carotenoid concentration is 395.2 mg/kg in report dated 11.02.2005 Test memo 103/2005 - acid value 10.9 carotenoid 398.2 mg/kg Test memo ST/14/2005 acid value 10.8 total c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned. According to the Learned Counsel, this Bench should rely upon the test report of the Port Health Officer and ignore the test report of the Customs Laboratory and give them the benefit of the exemption notification. He relies on the following case laws: 1. Commissioner Order dt.5.7.2013 in the case of Kedia Overseas Ltd., Visakhapatnam and acceptance of the order by the department 2. Cargill India Pvt Ltd., vs UOI [2013 (288) ELT 209 (Guj)] 3. CCE, Vijayawada vs Saraiwala Agro Refineries Ltd., [2017 (349) ELT 152 (Tri-Hyd)] 4. Ruchi Infrastructure Ltd., vs CCE, Visakhapatnam [2004 (168) ELT 49 (Tri-Bang) 5. Circular No. 3/2011-Cus dated 06.01.2011 6. Gokul Refoils Solvents Pvt Ltd., Vs UOI [2012 (278) ELT 433 (Cal)] and acceptance of the order by the department 7. Godrej Industries Ltd., Vs CC, Mumbai [2017 (357) ELT 899 (Tri-Mum)] 8. Liberty Oil Mills Ltd., Vs CC (Import), Mumbai [2015 (322) ELT 528 (Tri-Mum)] 9. Ruchi Soya Industries Ltd., Vs CC (Import), Jamnagar [2006 (206) ELT 827 (Tri-Mum) 10. Vinay Corporation Vs CC (Import), Mumbai [2008 (221) ELT 90 (Tri-Mum) 11. Satyam Enterprises Vs UOI [2017 (348) ELT 229 (M.P.)] 12. PEC Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and against the assessee. 7. He would submit that a case of conflict between two test reports came before this Bench in the case of Kimmi Steels Pvt Ltd., [2019 (368) ELT 92 (Tri-Hyd)] where the assessee was entitled to the benefit of exemption notification as per one test report and was not entitled to the benefit of the exemption as per another test report. This Bench has doubted the authenticity of both the test reports in that case and has decided the case by denying the benefit of exemption notification to the assessee giving the benefit of doubt to the Revenue following the ratio of the law laid down by the Constitutional Bench in Dilip Kumar (supra). He would submit that this order was challenged before the Hon'ble Apex Court in Civil Appeal No. 11072/2019 which was dismissed by the Hon'ble Apex Court with the following remarks: "Delay condoned. We are not inclined to interfere with the impugned judgment and order passed by the Tribunal. The civil appeal is dismissed accordingly. Pending application, if any, stand disposed of." 8. Learned DR would urge us to follow the ratio of this decision in deciding the present appeals also. 9. We have considered the submissions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication partly only with respect to the bills of entry filed after 08.02.2005 on the ground that in these cases, the samples satisfy both the acid value range and carotenoid range. Revenue is in appeal against the benefit granted by the First Appellate Authority with respect to the bills filed after 8.2.2005. 11. It is not in doubt that there are two sets of test reports one by the PHO certifying the goods to be of edible grade and another by the Customs Laboratory stating that they are not of edible grade. Revenue wants to rely on the Customs Laboratory test reports and deny the benefit of the exemption notification because it is available to only palm oil of edible grade. Assessee wants to rely on the PHO test report to argue that it was of edible grade. 12. It is the case of the Revenue that the PHO's certificate is only with respect to importability under Prevention of Food Adulteration Act and for the purpose of exemption notification, Customs Laboratory's report should prevail. It has also been canvassed on behalf of the Revenue before us that if there are two conflicting test reports, the benefit of doubt, if any, cannot go in favour of the assessee but should go in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Prevention of Food Adulteration Act as well as the classification of the oil (as per the Supplementary note to the Chapter 15 of Customs Tariff), the standards required are as laid down under A.17.19 of the Appendix to the Prevention of Food Adulteration Rules. No specific parameters have been laid down to determine if the oil is edible in the exemption notification. However, the exemption notification required the goods to fall under the particular tariff heading and hence the same standard A 17.19 has been applied by the Assessing Officer while determining the eligibility of exemption notification also. 18. Revenue has accepted the report of PHO that the imported goods meet the standards of A17.19 insofar as the importability is concerned but has rejected and held that it does not meet the same standards relying on the said report of the Customs Laboratory with respect to the same consignments as far as classification and exemption notification is concerned in the same assessment which is incongruous. If Revenue had followed only one set of reports for the entire assessment, they should have held that the goods in question are not edible and hence not importable as well. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted preservative in excess of the prescribed limits; (l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health; (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation - Where two or more articles of primary food are mixed together and the resultant article of food- (a) is stored, sold or distributed under a name which denotes the ingredients thereof; and (b) is not injurious to health, then, such resultant article shall not be deemed to be adulterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher : Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the penalty so determined; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
