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TMI Blog2022 (8) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... he parameter of the product imported by the appellant. Therefore, it was important on the part of the chemical examiner to first check as per the query raised by the custom that whether the sample conformed to the description of the goods as Low Aromatic White Spirit or not - to arrive at the conclusion that the product is Superior Kerosene Oil there are 8 Parameters which needs to be tested but as per the test report only 3 Parameters were tested. For this reason the test report of chemical examiner reporting the product as Kerosene cannot be taken as conclusive. Moreover, the appellant have rightly pointed out that the Adjudicating Authority has based this finding only on 1 parameter i.e. Distillation out of 8 Parameters for holding that goods are SKO. Wavier of detention and demurrage charges - HELD THAT:- The department must give effect of the above order for wavier of detention and demurrage charges. The department could not establish that the goods in question is SKO therefore, the classification claimed by the appellant needs to be maintained. The impugned order is set aside and giving effect of this order the department shall vacate the absolute confiscation and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as firstly in test memo the requirement of test was for the purpose to ascertain that the goods imported is Low Aromatic Spirit is a solvent. The Chemical Examiner without answering the query raised in the test memo but he on his own decided that the product is Kerosene. Secondly, the test required for establishing that the goods is Kerosene has not been performed correctly. The chemical examiner has not tested the vital parameters and jumped to the conclusion that the goods imported is Superior Kerosene Oil. Therefore, the test report which is sole basis of the case being inconclusive and defective, the case of the department do not sustain. He submits that the Lower Authorities have relied upon test results dated 16.102018 and 17.102018 issued by chemical examiner, Grade II, Customs House Laboratory, Kandla to order absolute confiscation of the goods on the ground that the same are Superior Kerosene Oil, a restricted item imported into India and not Low Aromatic White Spirit as declared by the appellant. He submits that the Learned Adjudicating Authority merely relied upon 2 parameters namely, Final Boiling Point (Maximum) and Flash Point (Minimum) to hold that goods are Super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered as kind of differentiating factor between solvent and Superior Kerosene Oil. 2.2 It is the submission that without testing the samples with references to i) Acidity ii) burning quality iii) colour iv) Copper strip corrosion and v) Sulphur content and by citing only, distillation, the criteria of reasonable doubt and probability laid down by the Hon ble High Court of Gujarat in the case of Rajkamal Industrial Pvt. Ltd (Supra) is not satisfied. He also referred to a book titled Significance of Tests for Pertroleum Products , seventh edition by Salvatore J.Rand, in chapter 7 dealing with Burner, Heating and Lighting Fuels. 2.3 He submits that the parameters prescribed for kerosene (not for solvent) in the given fact kerosene is used as illuminant and fuel. He submits that all the parameters have not been tested and the parameters that are tested do not satisfy the criteria. The impugned order passed by Learned Commissioner (Appeals) is liable to be quashed and set aside. He also submits that due to illegal absolute confiscation of the goods in question, the appellant is suffering heavy detention and demurrage charges which may be ordered to be waived. In support he pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported that parameter meets the requirement of Kerosene as per IS- 1459:2016. From the above we find that there may be a possibility that on the basis of the parameters tested by the chemical examiner the same also match with the parameter of the product imported by the appellant. Therefore, it was important on the part of the chemical examiner to first check as per the query raised by the custom that whether the sample conformed to the description of the goods as Low Aromatic White Spirit or not. Further as per the department s claim that the Superior Kerosene oil is specified under BIS 1459:1974, the said Specification is scanned below: From the above specification it can be seen that to arrive at the conclusion that the product is Superior Kerosene Oil there are 8 Parameters which needs to be tested but as per the test report only 3 Parameters were tested. For this reason the test report of chemical examiner reporting the product as Kerosene cannot be taken as conclusive. Moreover, the appellant have rightly pointed out that the Adjudicating Authority has based this finding only on 1 parameter i.e. Distillation out of 8 Parameters for holding that goods are SKO. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - whether a sample of product is kerosene or not... 31. However, in respect of the other two parameters regarding burning quality and colour, there is absolutely no evidence that the Revenue has produced to establish that the said two parameters are met with. Thus, Revenue has failed to demonstrate how the other two said parameters were also met. In view of the above decision of the tribunal the classification claimed by the appellant appears to be correct. We find that the appellant also relied upon the decision of this tribunal in the case of Swarna Oil Services (Supra) wherein the appeal filed by the importer was allowed after noticing that no test was undertaken for 3 parameters that were required under IS standard to establish that imported goods were SKO. In this case as many as 6 test have not been carried out for the same commodity. Therefore, we find that the case of Swarna Oil Service (Supra) is directly applicable to the facts of the present case. As regards the heavy reliance made by the revenue on the judgment of Hon ble High Court in the case or Rajkamal (Supra) we find that in the said judgment the Hon ble High Court applies the principle of reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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