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TMI Blog2022 (2) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... s regard the appellant post hearing submitted certain documents such as certificate issued by the appellant, invoices copies of their final product and the process flow diagram. From the documents it is established that raw material i.e. Petroleum Hydrocarbon Solvent imported by the appellant is their raw material which is used in the manufacture of their final product such as industrial solvent, thinner etc. This fact also strengthen the case of the appellant that the goods imported by them is not Superior Kerosene Oil. The declaration of the goods and classification made by the appellant in the bill of entry is correct and the department s claim of classification as Superior kerosene Oil could not be established - appeal allowed - decided in favor of appellant. - Customs Appeal No. 10626 of 2021 - A /10072/2022 - Dated:- 3-2-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Mrs. Nisha Bineesh, Advocate for the Appellant Shri. J.A Patel, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellant had filed bill of Entry No. 8594079 dated 24.10.2018 wherein the goods imported by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the impugned order in appeal was passed without considering facts and the submission and settled law in the present case accordingly, the order lacks the judicial discipline and deserves to be set aside on this ground alone. She submits that in the impugned order, learned Commissioner arrived at the conclusion only on reasons suggested in Deputy Chief Chemists report relied upon by the original authority to hold it as Superior Kerosene. She submits that the import goods are not understood as Kerosene Oil nor as Superior Kerosene Oil as there is no evidence brought out in the orders except an opinion in the test report. She submits that in the present case, all the parameters for Kerosene as specified under IS1459:1974 were not tested therefore, in absence of testing of all the parameters it cannot be concluded that the product is Superior Kerosene Oil. In this regard she placed reliance on this tribunal s decision in the case of M/s. Swarna Oil Services Custom Appeal No.12496 of 2019 vide Final Order No. A/11026-11028/2020 dated 01.06.2020. She submits that in the said judgment also identical facts were involved in as much as all the parameters of Kerosene Oil were not tested. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts the Hon ble High Court of Gujarat directed the revenue to get the goods tested from Indian Institute of Petroleum, Dehradun. Though the samples were sent for testing to Indian Institute of Petroleum, Dehradun but the department vide letter dated 01.05.2019 intimated the appellant that testing facilities for this type of work are not available at CSIR-IIP. The said letter is reproduce below: From the above communication of the department, it is clear that the IIP Dehradun could not test the parameters of Kerosene. In this fact the test of parameters of Kerosene could not be done conclusively. Therefore, the department did not discharge the burden to prove their case of classification. We find that in the identical facts and situation this tribunal has considered the case of Swarna Oil Services (Supra) wherein the following order was passed: 9. Heard both the sides and carefully considered the submissions made. The limited issue that arises for our consideration is whether the Revenue was correct in re-classifying the imported goods under chapter heading 27101910 as Superior Kerosene Oil. 10. It is not in dispute that for a product to be classified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts. + Where Saybolt chromometer is not available. Lovibond colour of the sample kept in an 18-in cell may be measured according to IS:1448 [P:13]-1960 Methods of test for petroleum and its products, P:13 Colour by Lovibond tintometer in which case, the colour shall not be deeper than Standard White (IP 4.0). For supplies to Defence, the smoke point of the product shall be 21 mm, Min and for Railways it shall be 20 mm, Min. For supplies to Defence, total sulphur content, percent by mass, of the product shall be 0.20, Max From a perusal of the test reports of CRCL Delhi and CRCL Kandla, assuming the same to be correct, notwithstanding the difference in the test results between the two qua the parameter regarding final boiling point. It is seen that out of the 8 parameters on which the sample has to be tested for determining whether or not the same meets with the specifications of Kerosene, it is seen from both the test results that test have not been undertaken with respect to the following 3 parameters.: (i) Burning quality (a) Char value, mg/kg of oil consumed, Max (b)Bloom on glass chimney (ii) Colour (Saybolt) (iii) Total, sulphur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be, that the onus of establishing that the said rings fell within Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed. 14. In our view, in the absence of evidence that the imported goods meet with all the specifications laid down in supplementary note (c) to chapter 27, for a product to be classified as Kerosene, the case made out by the revenue cannot be sustained. Accordingly the impugned orders are set aside and appeals are allowed with consequential reliefs, if any arise, in accordance with law. From the above judgment it can be seen that the facts of the above case and the claim of the revenue are identical to the present case therefore, the ratio of the above judgment is directly applicable. 4.2 Without prejudice, to our above finding, we find force in the argument of the appellant that the goods imported by them are used as raw material in the manufacture of their final product i.e. solvent. In this regard the appellant post hearing submitted certain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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