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TMI Blog2023 (2) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Diesel Fuel or Diesel Fuel or Light Diesel Oil had resulted into the seizure of the goods and also continuing with this inquiry. The import has been made in the month of September, 2022. There were two test reports, one from CRCL, Kandla is in favour of the petitioner, however, the Kandla Laboratory having expressed its limitation on opining on all eleven parameters, the matter had been referred to the CECL, Vadodara which opined other than what the CRCL, Kandla had and hence, the directions were issued by this Court for the report to be obtained from the Central Revenue Control Laboratory, New Delhi, it is being a appellate laboratory in all respect, its opinion shall need to weigh with the Court. We also notice that in case of M/s. Gujarat Ambuja Exports, whose cargo is said to have been commingled, release has already been given. The serious dispute had been raised with regard to the storage. Prima facie, the version put forth by the petitioner of commingling of the cargo on the strength of this material shall need to be accepted. More than that, the reports given by the Central Revenue Laboratory, New Delhi without semblance of doubt opines on the sample being the GTL Light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced the order for import of 3000 Metric Tone +/- 5% GTL Light Paraffin in bulk on Abacus Chemie DMCC, Dubai, UAE. Proforma invoice dated 30.08.2021 and sale order confirmation of the selfsame date was received from the said supplier. The letter of credit dated 06.09.2021 was opened in favour of the foreign supplier Abacus Chemie. 2.2 The supply came on 18.09.2021 of 2970 Metric Tone of GTL Light Paraffin against the commercial invoice No.AC/2021-80-293 along with certificate of origin and quality. The goods were shipped against the Bill of Lading No.HC2015A-07 dated 18.09.2021 vide Vessel-MT Hanyu Camellia with port of discharged being Mundra Port, Gujarat. 2.3 It is averred by the petitioner that GTL Light Paraffin was the product of Shell Refinery, Qatar and the same supplied directly from the Shell Refinery, Qatar after loading the same from Soharpur Port, Oman. The Shell Refinery is renowned multinational refinery having global presence according to the petitioner. The Vessel carrying the petitioner's cargo of GTL Light Paraffin came with cargo of other importers as comingled cargo on or about 23.09.2021 at Mundra Port and discharged the cargo in bonded storage tanks at Ada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, Regional Unit, Ghandhidham and Officers from Custom (SIIB) Custom House, Mundra visited the liquid terminal of Adani Ports and SEZ Limited and drew samples from the cargo stored in the tank Nos.57, 58 and 59. 2.9 The petitioner followed the matter for clearance of the balance quantity of 1360 Mts of the imported goods. However, after a lapse of more than a month's time, the goods were not cleared nor were any reasons assigned. This non-release on the part of the respondent, according to the petitioner, was after the report of CRCL, Kandla to the effect that goods were other than the Light Oil etc. The petitioner face the hardship and suffered the loss. It made payment of LC amount of USD 21,68,100 on 02.11.2021 and this had also caused immense financial pressure. 2.10 Communication was sent to the respondent No.2 on 15.11.2021 for release of the cargo, where the issues of acute financial hardship and irreparable losses on account of non-clearance also had been voiced. 2.11 It is the grievance on the part of the petitioner that instead of acceding to the said request, the goods in question were seized under Section 110(1) of the Customs Act,1962 vide Seizure Memo dated 15.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Civil Application No.3843 of 2022. This Court vide its order dated 31.03.2022 had directed the department to conduct the retesting of the same goods imported by another importer and loaded from Oman, from CRCL, New Delhi to verify whether the samples are of GTL Light Paraffin or it is Light Diesel Oil. This Court disposed of the matter on 21.04.2022, wherein the report of CRCL, New Delhi was reproduced where it opined that amongst others the sample is Liquid Paraffin, which was in case of some another importer. 2.16 On the strength of the earlier petition by another importer, the request is made to the respondent for the re- testing. The Court directed vide its order dated 19.10.2022 (Coram: Justice N.V. Anjaria and Justice Bhargav D. Karia) the competent authority of the respondent to send the sample of the product in question to CRCL, New Delhi for re-testing along with the letter requesting to CRCL, New Delhi to verify whether the product sent and the sample GTL Light Paraffin or its Light Diesel Oil. The Court further directed the report to be obtained expeditiously and to be placed before this Court on the next date of hearing. This was without prejudice to the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import such fuel products have been reserved for Licensed Enterprises and State Trading Enterprise like IOCL, BPCL, HPCL, etc. The petitioner is not a State Trading Enterprise nor possesses a license to import such fuels and hence, the import of Light Diesel Oil by the petitioner is liable to absolute confiscation. 4.2 The Directorate of Revenue Intelligence had received intelligence that the prohibited goods were received by way of import at Mundra from Middle East by various parties and therefore, investigation was initiated inquiring into such imports on 28.09.2021. While making inquiry of the liquid cargo imported onboard vessel MT Hanyu Camellia stored in the bonded Storage Tanks at Adani Ports and SEZ Terminal, Mundra, it appeared that prohibited goods were mis-declared by various entitles including the petitioner as GTL Light Paraffin. 4.3 In view of the intelligence and inconclusiveness of the tests reports issued by the Laboratory at Kandla, the request of lifting of the further cargoes by the petitioner as also by the other parties was put on a hold on 03.10.2021. 4.4 This opinion was rendered based on limited parameters, the respondent had sought classification from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60, Base Oil SN 70, GTL Light paraffin, Paraffin Oil, Base Oil GR1 60 N, etc., these were purchased from various suppliers. One of them also has stated that this product had come to his knowledge since last two years mainly used as a fuel in the vehicles but it is sold in the market for industrial use only. For trading of the product known as GTL Light Paraffin also said that sold the product at Ahmedabad to those persons who are engaging in manufacturing of foods products such as sweets, namkeen etc. These buyers had used the products declared as GTL Light Paraffin for heating the boilers installed in their manufacturing unit to manufacture the food items.Another buyer had stated that they got cleared 1500 MT subject goods under bond transfer from M/s.Shivtekt Industries Pvt. Ltd. and sold the same to the buyer, which include the traders, transporters, industries, etc. and they use it for the purpose of construction, hotels, mining, irrigation, earth-moving equipment operations, etc. This confirms the statement of others also, who along the same line have said that the goods are consumed as fuel in the vehicle, heavy earth-moving equipment, truck dumber, trailers, pay loaders, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which port and the cargo was discharged from the vessel MT Hanyu Camellia. It is denied that the liquid cargo delivered at the port of Kandla, Mundra and Hazira were not commingled. The tank 6P was meant to be discharged at Hazira whereas the survey reports cargo in tank 6S, the cargo of M/s. Gujarat Ambuja Exports Ltd., was discharged at Hazira Port which itself shows that the goods imported were part of the commingled import of the subject goods imported by vessel MT Hanyu Camellia and the same was discharged as per the decision of the Captain of the ship. Hence, the stowage plan according to the petitioner, is of no consequence. 5.1 It is submitted that the facts of Special Civil Application No.3843 of 2022 are on the same line and the tanker was loaded with Paraffin from Oman and the goods were declared accordingly. On arrival of the vessel, DRI expressed some doubts and drew the samples of the goods, which were sent for testing to CECL, Vadodara. This Court on 31.03.2022 had directed the department to conduct the retesting of the samples of the subject goods from CRCL, New Delhi to verify whether the samples are GTL Light Paraffin or the Light Diesel Oil and the petition was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CECL, Vadodara by DRI. 8.2 The samples were described as GTL Light Paraffin. The test report Nos. RCL/DRI/AH/1492,RCL/DRI/AH/1495,RCL/DRI /AH/1496, RCL/DRI/AH/1497, RCL/DRI/AH/1498, RCL/DRI/AH/1499,RCL/DRI/AH/1500,RCL/DRI/AH/ 1501, RCL/DRI/AH/1502, RCL/DRI/AH/1503 and RCL/DRI/AH/1504, all are dated 28.10.2021. The opinion of the Chemical Examiner Gr.II, Central Excise and Customs Laboratory, Vadodara is as follow: "Above analyzed parameters reveal that the sample u/r meet the requirements for "Light Diesel Oil" (LDO) as per IS:15770:2008 and also detailed requirements for "Diesel fuels" grade No.2-DS5000DE as per ASTM D 975-04a respectively." 8.3 The test report of Custom House Laboratory, Kandla with respect to import product declared as GTL Light Paraffin, the DRI on 06.10.2021 addressed a communication to Joint Director, Custom House Laboratory, Kandla by stating therein that in case of M/s.Alka Chemical Private Limited vide bill of entry Nos.5578758, 5577774 and 5577815 respectively dated 25.09.2021, 24.09.2021 and 24.09.2021 have been investigated as well as the similar imports. Certain tests reports were called for and the request is made to the Custom House Laborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laboratory, New Delhi addressed to the Additional Director, Directorate of Revenue Intelligence, Gandhidham (Kutch) regarding re-testing on remnant samples of import goods declared as GTL Light Paraffin. According to this report, each of the twelve samples under reference have been registered under the Laboratory on 28.11.2022. Six remnant samples having CLR-85 to 90 have been analyzed and the retest report is given their characteristic and mineral oil content as other details have been produced thus: Retest Report S.No. Characteristics Requirement of Paraffinic Diesel Fuel as per DIN EN 15940:2019-10 CLR-85 TM No. 49/2022 (Marked as T57/S1) CLR-86 T.M. No. 50/2022 (Marked as T58/S1) CLR-87 T.M. No. 51/2022 (Marked as TS/1) CLR-88 T.M. No. 52/2022 (Marked as TS/6) CLR-89 T.M. No. 53/2022 (Marked as TS/11) CLR-90 T.M. No. 54/2022 (Marked as TS/16) 1 Acidity, Inorganic - NIL NIL NIL NIL NIL NIL 2 Ash Content 0.01 NIL NIL NIL NIL NIL NIL 3 Total Aromatic Content % (M/M), MAX 1.1 Not detected Not detected Not detected Not detected Not detected Not detected 4 Fame Content, % (v/v), Max 7.0 Not detected Not detected Not detected Not detected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Ash Content 0.01 NIL NIL NIL NIL NIL NIL 3 Total Aromatic Content % (M/M), MAX 1.1 Not detected Not detected Not detected Not detected Not detected Not detected 4 Fame Content, % (v/v), Max 7.0 Not detected Not detected Not detected Not detected Not detected Not detected 5 Aniline Point Celsius - 97 95 96 96 96 96 6 Pour Point Celsius - Below -24 Below 24 Below 24 Below 24 Below 24 Below 24 7 Flash Point (PMCC), Celsius Above 55 69.0 70.0 69.5 70.0 70.0 70.0 8 K.V. at 40 Celsius cSt 2.0 to 4.5 2.511 2.512 2.535 2.536 2.535 2.670 9 Cetane Index, min 70 84.3 84.3 84.5 84.4 84.2 84.0 10 Total combination mg/kg, Max 24 2.15 2.14 Nil 3.0 8.85 1.71 11 Carbon Residue (Ramsbottom) on 10 percent residue, percent by mass, Max 0.30 0.01 Nil 0.014 Nil 0.012 Nil 12 Copper strip Corrosion for 3 h at 50 Celsius Not worse than No.1 1a 1a 1a 1a 1a 1a 13 Density at 15 Celsius, Kg/m3 765-810 777.0 776.9 776.9 776.9 776.9 777.3 14 Sulfur content mg/kg, max 5.0 Less than 5.0 Less than 5.0 Less than 5.0 Less than 5.0 Less than 5.0 Less than 5.0 15 Water content, % by mass, max ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of of 2970 MTs loaded on board the vessel as part of one original lot of 8500 MTs stored in 1W, 2W, 4W, 6W, 8S, 10W with no segregation as to parcels and the bill of M/s.Gujarat Ambuja Exports, which indicates that the shipment of 963 MTs was loaded on board the vessel as part of one original lot of 8500 MTs stowed in 1W, 2W, 4W, 6W, 8S, 10W with no segregation as to parcels. 12. Prima facie, the version put forth by the petitioner of commingling of the cargo on the strength of this material shall need to be accepted. More than that, the reports given by the Central Revenue Laboratory, New Delhi without semblance of doubt opines on the sample being the GTL Light Paraffin and not the Diesel Oil nor the Automotive Diesel Oil nor Light Diesel Oil. That being the case, the clearance of the balance quantity of 1360 MTs and as per the directions issued by this Court in the case of M/s.Alka Chemical Private Limited where also the issue was whether the sample was Light Diesel Oil or not. We deem it appropriate to follow the same by permitting the release of the seized quantity of goods 1360 MTs GTL Light Paraffin stored in Tank Nos.57, 58 and 117 and 1366.83 MTs GTL Light Paraffin st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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