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TMI Blog2023 (11) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... done by CRCL Vadodara/Delhi cannot be said to be the correct test as these Laboratories did not have the facilities for testing waste oil/furnace oil. It is a settled law that the Board Circulars are binding on the departmental officer as held by the Hon ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS M/S RATAN MELTING WIRE INDUSTRIES [ 2008 (10) TMI 5 - SUPREME COURT] . In view of above undisputed fact that during the relevant time as per Board Circular the CRCL Vadodara or as the case may be CRCL Delhi being not equipped with the facility to test waste oil/furnace oil the test report of the said laboratories cannot be accepted. Since the goods were supposed to be released as per the High Court order, the act of department is clearly the non-compliance with the High Court order for which if any action to be taken it is by the High Court. Therefore, even after prima facie finding that the goods were supposed to be released this Tribunal can not give any direction in this regard with reference to the Hon ble High Court in GAURAV LUBRICANTS INDUSTRIES PRIVATE LIMITED VERSUS UNION OF INDIA [ 2018 (10) TMI 2016 - GUJARAT HIGH COURT] . However, since in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant submits that the entire case was based on the test conducted on the imported goods by CRCL- Vadodara. He submits that the laboratory tested the goods were neither authorized nor equipped with the facility to test the subject goods. Therefore, the whole basis of the test result relied upon for change of classification is illegal and cannot be relied upon. In this regard he referred to the circular No. 30/2017-Cus dated 18.07.2017, 43/2017-Cus dated 16.11.2017, 11/2018-Cus dated 17.05.2018, 15/2019-Cus dated 07.06.2019. He also placed reliance upon Trade Notice/ Public Notice-19/2018- (Ahmedabad) dated 30.05.2018 referring to the above circular, he submits that it is clear from the said circular that during the relevant period the CRCL Vadodara or CRCL Delhi, were not equipped with the facilities to test the product in question. Therefore, the testing done by the unauthorized laboratory cannot be relied upon and consequently the entire case decided on the basis of such test report is illegal and incorrect. In support, he placed reliance upon the following judgments: Asian Granito India Vs. CC, Mundra- 2021 (375) ELT 587 (Tri.-Ahmd.) Chem Plast Vs. C.C- Jamnagar Final Order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 308, Uttar Pradesh 2. Central Coal Testing Research Laboratory Western Coalfields Limited Address : Nara Nari Road, Kalpana Nagar, P.O. Uppalwadi Nagpur, Pin - 440 026, Maharashtra 3. MSME Testing Centre, 65/1 GST Road, Guindy, Chennai, Pin - 600032 Tamil Nadu From the above circular, it can be seen that the CRCL- Vadodara or CRCL Delhi were not equipped laboratory with the facility to test the furnace oil. Even prior to the above circular as per Circular No. 43/2017-Cus dated 16.11.2017, the facility to test the goods in question that is waste oil/furnace oil was not available with the CRCL- Vadodara or Delhi, the said Circular is also reproduced below: Circular No. 43/2017-Cus., dated 16-11-2017 F. No. 401/243/2016-Cus. III Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Forwarding of samples for testing to the Outside Laboratories - Regarding. It has come to the notice of the Board that due to lack of testing facilities of certain goods in Revenue Laboratories, there is delay in clearance of the consignments of these goods due to avoidable movement of samples between Customs field formations and Revenue Laborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Board. ANNEXURE I Sl. No. Chapter No. Samples to be referred Suggested Laboratories (1) (2) (3) (4) 10 27 19. Coking Coal 20. Steam Coal 21. Solvent C-9 22. C-9-C-11 Liquid Paraffins 23. C-14-C-20 N Paraffins 24. Petroleum Bitumen 60/70 25. Diesel Oil 26. Waksol 9-11 A Grade 27. Thinner Off Spec 28. Waste Oil/ Sludge Oil/ Sludge Water/ Bilge Water/ Stop Water/ Furnace Oil Central Institute of Mining and Fuel Research (CIMFR), Nagpur (Under Ministry of Science Technology) CSIR-CIMFR, Barwa Road, Dhanbad 826015, Jharkhand, INDIA Tel : 91-326-2296004/5/6, Email : [email protected]/ [email protected]/[email protected] Central Mine Planning Design Institute Limited, Ranchi (Under Ministry of Coal) (A Subsidiary of Coal India Limited/a Public Sector Undertaking of the Government of India Under the Ministry of Coal), Gondwana Place, Kanke Road, Ranchi - 834 031, Jharkhand, India Phone : (+91) 651 2231850/51/52/53, Fax : (+91) 651 2231447/223082 Indian Institute of Petroleum (IIP), Dehradun (Under Ministry of Science Technology) CSIR - IIP, Dehradun 248005 Email : [email protected], Phone : 0135 2525743, 2660124, Fax : 0135 2660202 IOCL (R D Centre), Faridabad (Under Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice of the Board. Sl. No. Chapter No. Name of the Samples 5 27 Steam Coal Solvent C-9 C-9-C-11 Liquid Paraffins C-14-C-20 N Paraffins Petroleum Bitumen 60/70 Diesel Oil Waksol 9-11 A Grade Thinner Off Spec Waste Oil/Sludge Oil/Sludge Water/Bilge Water/Stop Water/Furnace Oil From the perusal of all the 3 Circulars as reproduced above, it is found that the facility to test waste oil or furnace oil was made available only as per the circular dated 07.06.2009 prior to that the CRCL Vadodara or as the case may be CRCL Delhi, did not have the facility to test the waste oil/furnace oil. Admittedly in the present case, the tests of goods in question were done prior to the issue of Circular No. 15/2009-Cus. Accordingly, the testing done by CRCL Vadodara/Delhi cannot be said to be the correct test as these Laboratories did not have the facilities for testing waste oil/furnace oil. It is a settled law that the Board Circulars are binding on the departmental officer as held by the Hon ble Supreme Court in the case of M/s. Commr of C.Ex., Bolpur Vs. Ratan Melting Wire Industries-2008 (231) ELT 22 (S.C). We find that this Tribunal also dealing with the issue that whether the test report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Calcite Powder is one of the specified product which CRCL Lab is unable to test. 7. The above fact demolishes the Revenue s case. As such, we find no merits in the Revenue s stand. Their appeal is accordingly rejected. Following the above decision of M/s. Manikya Creations Pvt Ltd, the Mumbai Bench of the CESTAT in the case of 20 Microns Ltd also expressed the same view as under: 5. The contention of the appellant that oil absorption value and particle size are both critical in determining classification cannot be lost sight of. The test report does not refer to particle size and it has been officially admitted that the chemical facilities of the department is deficient in capacity to carry out that test. As the test result is faulty, we apply the principle laid down in re Gulshan Polyols Ltd. and re Shakshi Makfin Pvt. Ltd. and the decision of the Tribunal in Commissioner of Customs, Central Excise and Service Tax v. Manikya Creations Pvt. Ltd. [2019 (365) E.L.T. 130 (Tri.-All.)] that : 6. Being aggrieved, Revenue has filed the appeal on the ground that CRCL is fully equipped to test the goods. On the other hand, the appellant has referred to Circular No. 43/2017- Customs, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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