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TMI Blog2020 (8) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiate it, he would refer to some records and logs. No records were produced, no log book was produced. Even after the entire excise the cross examination done by Revenue the impugned order could only come to the conclusion that thus during the cross examination the noticee have not be able to bring out the fact of Chemical Examiner had not followed the ASTM D 86 method . On the strength of above assertion the impugned order come to the conclusion that the ASTM D 86 method was followed. Thus, it is apparent that Commissioner after examining all the facts of the case and the cross examination of Assistant Chemical Examiner Chemical Assistant Grade-I could only reach to a conclusion that the appellant have failed to establish of ASTM D 86 method was not followed. Thus, we find the impugned order cannot be sustained in the present form. It is seen that during cross examination of the Chemical Assistant Grade-I has clearly stated that log books and the registers are maintained in their laboratory, however, appellants chose not to ask for the same and Revenue chose not to produce the same - The entire purpose of remanding the case is defeated if the facts are not brought out complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bond Store respectively, declaring the imported goods as Naphtha while classifying the same under CTH 2710 11 19 attracting, besides others, basic customs duty @10%, while claiming benefit of Entry No. 74 of exemption Notification No. 21/2002-Cust dated 01.3.2002 as amended. 1.4 It is the case of revenue that representative samples of the imported goods were drawn on board the vessel on 31.07.2004. The two sealed samples so drawn were forwarded to the laboratory of Custom House, Kandla for testing vide letters dated 04.08.2004. In regard to the said samples, two reports were rendered by said Lab vide reports dated 11.08.2004. Kindly see 164 and 165 vol.2 paper book, both front and back of the said pages, The said reports were rendered by Sh. Dilip Mehta, Assistant Chemical Examiner. 1.5 Before making further submissions it would be relevant to refer here Sub heading Note 4 to Chapter 27 of the Customs Tariff Act, 1975 which reads as under: For the purpose of sub heading 2710 11 light oils and preparations are those of which 90% or more by volume (including losses)distil at 2110 degree centigrade (ASTM D 86 method) This is the method of testing that was to be perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods and its classification and as per the aforesaid reports and opinion the subject goods did not satisfy the said criteria since the final boiling range on testing was found to be more than 210 degree centigrade. It is the case of revenue that in view of the aforesaid test reports/observations / evidences it appeared that the imported goods do not fulfill the definition of light oils and preparations and the specifications of Naphtha and hence the said goods did not appear to be classifiable under CTH 2710 11 19 as declared. The imported goods being petroleum products appeared to be classifiable under sub heading 271019 other. CTH 27101910 to 27101980 relate to specific products and the imported good do not meet the requirements of boiling range and flash point related with the said specific products, hence the imported goods do not appear to be classifiable unde the said entries. Accordingly the subject goods were alleged to be classifiable under CTH 27101990 as other . It was alleged that Assistant Chemicals Examiner, Custom Lab Kandla, had rendered similar opinion dated 17.08.2004. Further it was alleged that the products falling under CTH 27101990 attract basic cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs Ld. Commissioner noted and reproduced the aforesaid directions of this Tribunal (in the remand order dated 18.2.2008) In para 16.1 of the order it was observed that in compliance with the aforesaid directions importers were allowed cross-examination of Sh. Dilip Mehta, Assistant Chemical Examiner on 10.3.2008) on the strength of cross examination of Shri Dilip Mehta it was asserted by appellants that the said chemical Examiner was not even aware of the prescribed test method voz. ASTM D86 method. Personal hearing was attended upon on 20.3.2010 and detailed argument was addressed on behalf of Appellants. On conclusion of arguments on 20.3. 2010, the adjudicating authority desired that the written submissions be filed within 10 days and the said written submission were filed on 30.3.2010 as desired. 1.12 However no order was passed by the Ld. Respondent. Almost after five months, Appellant was intimated that another witness Shri T.K. Myelvalganan Chemical Assistant Grade-I who carried the test under supervision of Shri. Dilip Mehta, Assistant Chemical Examiner was required to be cross examined by the notices / importers on 5.8.2010. Protest was lodged that the said witness was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Page 107 where from the table: preparation of apparatus it is apparent that for the sample meant to be tested there are five groups i.e. group 0 to 4 Page 108 para 4.1 and 4.2-summary of Test Method, wherein it has been stated that based on its composition, vapor pressure, expected IMP, or expected EP, or Combination thereof, sample is placed in one of five groups. Apparatus arrangement condenser temperature and other operational variables are defined by the groups in which the sample falls. Systematic observations of temperature readings and volumes of condensate are made, depending on the needs of the user of the data. The volume of the residue and losses are also recorded. Para 6.3 at page 108- Temperature Measuring Device, wherein it has been stated that mercury-in-glass thermometer if used, shall be filled with an inert gas, graduated on the stem and enamd bagged. They shall confirm to Specification E1 or IP Standard Methods for Analysis and Testing of Petroleum and Related Products 1996, Appendix A, or both, for thermometer ASTM 7C / IP 5C and ASTM 7F for low range thermometers and ASTM 8C/IP 6C and ASTM 8F for the high range thermometer. Para 7.2.1.1 and 7.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent that the losses were not recorded, which were required to be so recorded in view of the procedure of ASTM D86 method, as stated above. The answers given are self contradictory. Further if going by what had been stated in the above questions and answers while aggregating the recovery of 69% and 31% losses, at the required 210◦ centigrade the recovery would have been 90% which is the required parameter. These are few instances of crosss examination conducted of Shri Dilip Mehta and Appellant craves leaves to refer and rely on other portions of cross examination so conducted, at the time of hearing. 4. Ld. Counsel argued that from the aforesaid it can be seen that they were lot of lacunas in the testing procedure emerged from the cross examination of Shri. Dilip Mehta and therefore a new witness Shri. T.K. Myelvalganan was introduced by the adjudicating authority. He further submitted that even the test report of customs labs of IOC and Reliance Industries Limited does not indicate method of ASTM D86 was followed or not. He further argued that there were following lacunas in testing D. Submissions on Reports i) Customs Lab Kandla (Page 164 and 165, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant had entered into contract dated 08.07.2004 with the foreign supplier import of the subject goods and backed by Letter of Credit dated 12.07.2004. He further stated that the contract clearly specified the item which was to be imported therefore if any different item was found it cannot be attributed to the appellant. 7. Ld. AR relies on the impugned order. Ld. AR also submitted written submissions which are essentially reproduction of various paras to the impugned order. 8. We have considered the rival submissions, the appellant has imported the goods and declared the same as Naphtha falling under Chapter 2710 11 19 of the first schedule of the Customs Tariff Act claiming benefit of Notification No. 21/2002-Cus dated 01.03.2002. After draw all of samples and testing Revenue sought to classify the same as others falling under heading 2710 19 90 instead of the same being treated as Naphtha falling under heading 2710 11 19 as declared in the Bills Of Entry. Revenue has got it samples tested in their laboratory as well as in the laboratories of M/s. Reliance Industries Limited and Oil India Limited. 9. From the above, it is seen that the primary defense of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble opportunity of hearing before deciding the issue. 10. In the remand proceedings the Cross Examination of Shri. Dilip Mehta, Assistant Chemical Examiner was allowed and conducted on 10.03.2010. Thereafter, personal hearing was attended by the appellant. Thereafter, written submissions were filed by the appellant.30.03.2010. Five months after the personal hearing the appellant were informed by the Commissioner that another witness Sh. T.K. Myelvalganan Chemical Assistant Grade-I, who carried out the test under supervision of Sh. Dilip Mehta Assistant Chemical Examiner, was required to be cross examined by the notices/importer on 05.10.2010. The appellant lodged their protest that a new witness was being introduced to cover up the lacunas brought on record during the cross examination of earlier witness Sh. Dilip Mehta. The appellants argued that said action was beyond the directions given in the remand order of tribunal dated 18.02.2008. The said protest was not considered by the lower adjudicating authority and the appellant cross examined Shri. T.K. Myelvalganan Chemical Assistant Grade-I on 05.08.2010. Ld. Counsel argued that the Revenue has solely relied on the cross exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, it is seen that the report of the sample testing was signed by both Shri. T.K. Myelvalganan Chemical Assistant Grade-I as well as Shri. Dilip Mehta, Assistant Chemical Examiner . Thus, in these circumstances it is seen that the report was not signed by any Chemical Examiner . In these circumstances the direction of the Tribunal to permit examination of Chemical Examiner could not have been followed as test report was not sign by any Chemical Examiner . Since, test report contains the signature of Shri. Dilip Mehta, Assistant Chemical Examiner as well as Shri. T.K. Myelvalganan, Chemical Assistant Grade-I cross examination of both of them would be relevant. On this ground, the objection raised by the appellant cannot therefore be sustained. 13. During the cross examination of Shri. T.K. Myelvalganan, Chemical Assistant Grade-I, interalia, following emerged:- Q. Is there any mention in the report as to under which system the tests were carried out? A. No. Q. Is it in your knowledge that the system prescribed for carrying out the test under ASTM id being modified form time to time? A. Yes. Q. Would you enlighten me as to D 86 stand for? A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draw your kind attention to the report dated 11.8.2004. The initial Boiling Point is shown at 47 degree C and at 61 C, recovery has been shown of 10%. What time did it consume to report this recovery of 10%? A. I followed the exact group prescribed in ASTM D 86 regarding the temperature and recovery. I have nothing to add. Q. Is it that recording of duration referred in the above question is also very much an essential requirement? A. Yes. Q. You claim that you have been following the procedure of ASTM D 86 of 1980. Have you been following the instructions therein regarding various aspects of timing, etc? A. Yes. Q. Now you claim that you have been following the requirements. Did you make any note of the same either in the report or in any of the registers/log book, as you claim , are being maintained? A. I have already answered. Q. you have not answered that these requirements were noted except you said that registers/log book were being maintained? A. It is duly recorded in the register (Chemist). Q. The registers/log book is maintained as you suggested. Whether its pages are pagi-dated or not? A. It is pagi-dated. Q. Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any significance to determine the nature of the sample? A. According to Customs Tariff classification, presence of Sulphur and Lead content is not important. There is no need to estimate these two parameters. A. Is it that the testing of sample is carried out as per the approach for the Customs Tariff and otherwise? A. The testing of the samples is carried out as per Customs Tariff and not for quality control level. Q. As per ASTM D 86 method for distillation is it necessary to report the residue and/ or losses? A. From the distillation range, the percentage of losses is self-explanatory. Q. I again request you to please answer the earlier question as put to you? A. Same answer as above. Q. I put to your that since you have not laid down the procedure, as laid down under ASTM D 86 method, you are intentionally avoiding answering this question? Is it correct or not? A. No. I did distillation of the above two sample as per ASTM D 86 method in our laboratory distillation apparatus especially for ASTM D 86 method. Q. Is it correct or not that whatever method regarding various aspects of testing/temperature etc., which you claim to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ◦C 0-5 13-18 13-18 13-18A 13- ambient A ◦F 32-40 55-65 55-65 55-65A 65- ambient A Summary of Test Method 4.1 Based on its composition, vapor pressure, expected PBP or expected EP, or combination thereof, the sample is placed in one of five groups. Apparatus arrangement, condenser temperature, and other operational variables are defined by the group in which the sample falls. TABLE 3 Sampling, Storage, and Sample Conditioning Group U Group 1 Group 2 Group 3 Group 4 Temperature of sample bottle C̊ 5 10 ̊F 40 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 ̊ C. From the cross-examination of Shri. Dilip Mehta, Assistant Chemical Examiner it the apparent that he has not conducted the test himself and the test was conducted by Shri. T.K. Myelvalganan Chemical Assistant Grade-I cross examination of the Chemical Examiner Grade-I shows that while he kept insisting that the ASTM D 86 method was followed. When asked to substantiate it, he would refer to some records and logs. No records were produced, no log book was produced. Even after the entire excise the cross examination done by Revenue the impugned order could only come to the conclusion that thus during the cross examination the noticee have not be able to bring out the fact of Chemical Examiner had not followed the ASTM D 86 method . On the strength of above assertion the impugned order come to the conclusion that the ASTM D 86 method was followed. From the above it is apparent that Commissioner after examining all the facts of the case and the cross examination of Assistant Chemical Examiner Chemical Assistant Grade-I could only reach to a conclusion that the appellant have failed to establish of ASTM D 86 method was not followed. Thus, we find the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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