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TMI Blog2023 (9) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... t for re-testing was made by the petitioner on 30.09.2021. This request was not accepted and the show cause notice came to be issued on 22.03.2022 - in the reply to the show cause notice, a clear stand was taken by the petitioner that the specific tests required to be done as per directions of the Senior Intelligence Officer were not undertaken by the Vadodara Laboratory. This aspect is clear on perusing the Test Memo dated 16.09.2021 and the test report of the Vadodara Laboratory. The Joint Commissioner of Customs in his order dated 21.06.2022 has not considered this relevant aspect and without dealing with the specific stand of the petitioner has proceeded to accept the test reports of the Vadodara Laboratory. From the test report dated 03.04.2023 received from the Mumbai Laboratory as well as the re-testing report dated 19.05.2023 received from CRCL, New Delhi, we find that the entire basis for issuance of the show cause notice that was issued in view of the report of the Vadodara Laboratory indicating import of kerosene oil would not now survive. It is not in dispute that the report received from the Vadodara Laboratory is categorical in its finding that the samples met the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Pursuant to Invoice dated 23.08.2021 the petitioner imported Mixed Mineral Hydrocarbon Oil from Kuwait. The description of the goods is Mixed Mineral Hydrocarbon Oil HS-Code 27101990. A Bill of Entry dated 11.09.2021 was accordingly filed by the petitioner at ICD Borkhedi, Nagpur. In the packing list it was stated that six containers of Mixed Mineral Hydrocarbon Oil under CTH 2710 had been imported. The Officers of the Directorate of Revenue Intelligence drew samples of the imported material from each container and the samples were sent to the Central Excise and Customs Laboratory, Vadodara - the Vadodara Laboratory on 16.09.2021. The laboratory report dated 23.09.2021 was accordingly received in which it was stated that the samples met the requirements of kerosene as per IS 1459-1974. According to the petitioner all requisite tests that are required to be conducted as well as the tests as directed by the Officers of the Directorate of Revenue Intelligence had not been conducted at the Vadodara Laboratory. On the basis of the aforesaid report the Officers of the Customs Department had a reasonable belief that the imported goods were liable for confiscation under Section 111 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory. The report was directed to be submitted within a period of one week of the laboratory receiving the samples. Since the report could not be submitted within the time as directed, an application was filed for extension of such time which came to be accordingly granted. Accordingly, the test reports from the Mumbai Laboratory were received vide communication dated 03.04.2023. As per those reports, the samples were in the form of colourless viscous oily liquid composed of more than 70% mineral hydrocarbon oil having characteristics of Base Oil. The Directorate of Revenue Intelligence thus moved Civil Application (W) No. 1320 of 2023 seeking time to submit a second test report in terms of Circular dated 18.07.2017. The said application was allowed on 24.04.2023. The samples were then sent to Central Revenues Control Laboratory, New Delhi - CRCL, New Delhi. Thereafter, the re-testing report dated 19.05.2023 received from CRCL, New Delhi has been placed on record. As per the said report each of the six samples is in the form of colourless vicious oily liquid that is mainly composed of Mineral Hydrocarbon Oil having mineral oil content more than 70% by weight. It was further stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenged on the ground that the order passed by the Joint Commissioner of Customs could be challenged in a statutory appeal under the Act of 1962. There was no exceptional case to permit the petitioner to bypass that statutory remedy and approach this Court in the present writ petition. Without prejudice to the aforesaid it was submitted that notwithstanding the subsequent test reports it was clear that the classification of the goods was in dispute. The petitioner was liable to pay the duty on the imported goods and it was not a case of complete waiver. Referring to the provisions of Section 122-A of the Act of 1962 it was submitted that this aspect would require adjudication. Since such adjudication was necessary the prayers made in the writ petition were not liable to be granted. He referred to the affidavits filed on record to substantiate his contentions. It was thus submitted that the writ petition was liable to be dismissed. 7. We have heard the learned counsel for the parties at length and with their assistance we have perused the relevant material on record. We may at the outset indicate the reasons for entertaining the writ petition in the light of the objection raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Memo dated 16.09.2021 and the test report of the Vadodara Laboratory. The Joint Commissioner of Customs in his order dated 21.06.2022 has not considered this relevant aspect and without dealing with the specific stand of the petitioner has proceeded to accept the test reports of the Vadodara Laboratory. 9. The grievance of the petitioner based on Circular 30/2017- Customs in the context of the prayer for re-testing was considered by this Court on 10.03.2023 and the samples were directed to be sent to the Mumbai Laboratory for analysis. It is not in dispute that the report from the Mumbai Laboratory dated 03.04.2023 indicates presence of more than 70% Mineral Hydrocarbon Oil in the samples having characteristics of Base Oil. Since the Customs Department was not satisfied with the said test report, its request for re-testing as made in Civil Application (W) No. 1320 of 2023 was granted on 24.04.2023. The re-testing report from CRCL, New Delhi dated 19.05.2023 reiterates the findings of the test report received from the Mumbai Laboratory. 10. Thus from the test report dated 03.04.2023 received from the Mumbai Laboratory as well as the re-testing report dated 19.05.2023 receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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