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TMI Blog2008 (7) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ) S/Shri T. Ramesh, Advocate and M.S. Kumarasamy, Consultant, for the Appellant. Shri N.J. Kumaresh, SDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - The appellants in these appeals had imported what was declared as 'Sulphonated Fish Oil' and classified under Heading 34.02 of the First Schedule to the Customs Tariff Act. They also claimed the benefit of concessional rate of duty under Customs Notification No. 16/2000. Samples of the goods were drawn and sent to the Department's chemical laboratory. The Chemical Examiner, after test, reported thus : "Samples of Article 7239 received and tested in the laboratory do not show the presence of Fish Oil in them. The samples on analysis were found to be Sulphonated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1997, it was accepted by the assessing authority as Sulphonated Fish Oil under Heading 34.02 on the basis of a report of the Chemical Examiner. That report was on Article 7239. The same article was imported subsequently from the same supplier. In the circumstances, the assessing authority ought to have avoided the second test and should have gone by the previous test report in terms of Public Notice No. 71/93 issued by the Customs House. The learned counsel has also relied on the Apex Court's judgment in Poulose And Mathen v. Collector - 1997 (90) E.L.T. 264 (S.C.) and the Tribunal's decision in Super Tech Agro Oils Pvt. Ltd. v. Commissioner - 2007 (216) E.L.T. 618 (Tri.-Del.). We have heard the learned SDR also, who has reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face tension of distilled water to 45 dynes/cm or below. The relevant HSN Note says that, if this criterion is not met, the sample is not an organic surface-active agent and hence shall stand excluded from Heading 34.02. Even the appellants do not have a case that tests were performed in this manner by CLRI or M/s. S.G.S. India Ltd. 5. We shall now revert to the Chemical Examiner. His test report is categorical that the samples cannot be treated as Sulphonated Fish Oil. The Chief Chemist (CRCL), after retest, certified that the samples were only preparations of composition similar to that of the preparations covered by Heading 34.03. This would clearly show that the Department's chemical laboratories performed the requisite tests to arr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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