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TMI Blog2024 (1) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... o be only on assumptions and presumptions of the adjudicating authority. From the test reports placed in the appeal paper book from page 28 onwards reveal that 15 samples of 20mm TMT bar were tested and 14 samples of 25mm TMT bar were tested by NML; the percentage of silicon content of 20mm TMT bar was between 0.37 and 0.62 and in respect of 25mm TMT bar, the same was between 0.57 and 0.66. The average would be 0.58% in respect of the 20mm TMT bar. The Commissioner (Appeals), however, in the impugned order, has held that the average silicon content was more than 0.6%, which is also baseless and it only shows the non-application of mind. Having referred for test analysis, his observation that the application of Indian Standards guideline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econdary, the Revenue drew samples and sent the same to National Metallurgical Laboratory (NML), Chennai. Thereafter, basing on the letter dated 30.06.2008 filed by the importer, the Bill-of-Entry was assessed provisionally pending the outcome of the test result, with BCD at the rate of 5% and nil rate of CVD. Accordingly, the importer had paid the quantified duty under protest after filing a letter of protest dated 08.07.2008. 3. NML, after chemical analysis, has vide their test report No. 20095 dated 05.08.2008 issued in F.No.NML/DQM/MC/F-03, stated that the impugned goods are TMT Bars Grade 500 Prime Quality . 4. It appears that the Bill-of-Entry was thereafter assessed finally on 13.08.2008, however, without giving any opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected their appeal and it is against this order that the present appeal has been filed before this forum. 8. Heard Smt. S. Yogalakshmi, Ld. Advocate for the appellant and Shri N. Satyanarayanan, Ld. Assistant Commissioner for the Revenue. 9. After hearing both sides, we find that the only issue to be decided by us is: whether the appellant is entitled to the benefit of Nil rate of BCD in terms of Sl. No. 190C of Notification No. 21/2002-Cus. dated 01.03.2002, as claimed, for the goods in question? 10.1 The Ld. Advocate would submit that the report of NML clearly indicated that the samples drawn were non-alloy steel as per IS 7598:1990 and hence, the imported material being TMT bar as opined even by the scientists at NML, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the documents placed on record. 13. This is a case where apparently the demand has been raised by the Revenue by re-classifying the TMT bars under CTH 72279090, which action is not at all supported by any evidence. Thus, the very demand appears to be only on assumptions and presumptions of the adjudicating authority. 14.1 It was the Revenue who chose to get the opinion of an expert i.e., National Metallurgical Laboratory (NML) here in this case, to ascertain the true nature / composition of the TMT bars imported by the appellant, which report is also part of the Revenue records. The expert i.e., National Metallurgical Laboratory, has clearly opined that all the samples drawn and sent for analysis were non-alloy steels as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to ascertain whether these 32 MM TMT bars are alloy (or) non alloy steel to extend the notification benefit. In the absence of any evidence to prove that the imported goods of 32 MM TMT bar are non-alloy steel, the exemption benefit claimed for BCD vide Sl. No. 190C is rejected. 15.1 In the order, however, the original authority has chosen to treat the 16mm TMT bars as non-alloy eligible for Nil rate of BCD, but, has, for unknown reasons, chosen not to accept the 20mm and 25mm TMT bars as non-alloys, which is clearly contrary to the expert evidence and thus, this discretion of the original authority is baseless and not acceptable. 15.2 Hence, the impugned order to this extent, which has upheld the above findings of the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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