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TMI Blog2023 (5) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Tariff Heading No 28365000? - HELD THAT:- It is found from the factual matrix that at the relevant time Kandla port CRCL laboratory, was not having requisite test facility, even as per the case laws cited as well as the Board Circular No. 43/2017-Cus dated 16.11.2017. Further, once a report was received by the party and it sought re-test within reasonable time and simultaneously or even befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed calcite powder‟ falling under Heading No. 25309030. Party has accordingly claimed classification and assessment. Department however has taken a view after a test through the CRCL laboratory at Kandla, that the concerned item was uncoated Precipitated Calcium Carbonate‟, and therefore was liable to be assessed under Tariff Heading No 28365000. Department had drawn the samples immedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came up for adjudication before Lower Authorities, it was pointed out that the party had brought the report of Delhi Test House at the back of department and therefore same was not acceptable. However, the contention of the party that they had sought re-test of the samples as per the procedures of the custom manual was never dealt with by the Commissioner (Appeals) in the impugned order. Being ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facility and department itself permitted test from outside laboratories. The report of the department becomes unacceptable and this fact has been taken cognigence of in various case laws including in 2019 (365) ELT 130 (Tri.-All), in the matter of Commissioner of Customs ST Noida V/s. Manikya Creations Pvt. Ltd., in which the same circular was relied upon to indicate that CRCL could not done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase laws cited as well as the CBEC Circular. Further, once a report was received by the party and it sought re-test within reasonable time and simultaneously or even before the test report did test at the private lab same should have been accepted. We also find that the impugned order of the Commissioner (Appeals) gives no reasons as to why the department could not agree with the request of re-tes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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