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TMI Blog2024 (2) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. - MR. RAJU, MEMBER (TECHNICAL) AND MR. SOMESH ARORA, MEMBER (JUDICIAL) Ms. Himanshi Patwa, Advocate for the Appellant Shri. Sanjay Kumar, Superintendent (Authorized Representative) for the Respondent ORDER This appeal has been filed by OASIS IMPEX against re-classification of the product imported by them. 2. Learned Counsel for the appellant pointed out that they had imported calcite powder (uncoated). The revenue reclassified the product as calcite powder (uncoated). The reclassification was done on the strength of the Chemical Examiners Report. All the Chemical Examiners Report have been placed on records by the revenue. Learned Counsel pointed out that at the material time as per F.N. 401/243/2016-Cus-III dated 16.11.2017, the Customs Laboratory did not have facility to test the Precipitated Calcium Carbonate . The serial No 9 of the table attached to the aforesaid circular reads as follows:- Sr. No Chapter No. Samples to be referred Suggested Laboratories 9 26 6. Lime Stone 7. Quick Lime 8. Dolomite 9. Natural Calcite Powder 10. Oliflux 11. Chalk 1. National Council for Cement and Building Materials (Under the Administrative Control of Ministry of Commerce Industry, Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied some more entities annexed herewith as Annexure, where the samples could be tested. 3. Principal Commissioners/Commissioners of Customs are requested to issue suitable Public Notice to bring the same to notice of all concerned. 4. Difficulty faced, if any, may be brought to the notice of the Board. Hindi version will follow. Annexure Sl. No. Chapter No. Samples to be referred Suggested Laboratories (1) (2) (3) (4) 10 27 12.Coking Coal 13. Steam Coal 14. Solvent C-9 15. C-9-C-11 Liquid Paraffins 16. C-14-C-20 N Paraffins 17. Petroleum Bitumen 60/70 18. Diesel Oil 19. Waksol 9-11 A Grade 20. Thinner Off Spec 21. Waste Oil/Sludge Oil/Sludge Water/Bilge Water/Stop Water/Furnace Oil 1. NTPC Energy Technology Research Alliance (NETRA), NTPC Ltd. Address : Plot No. E-3 Ecotech-II, Greater Noida Gautam Buddha Nagar, Pin - 201308, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as to get the test report expeditiously and preferably online. c. In cases where the time taken by laboratory exceeds three days, the importer should invariably be given an option to warehouse goods under section 49 of the Customs Act. d. Testing fee, if any, shall be paid by the importer or the exporter. 4. It is further clarified that aforementioned procedure shall not be applicable in cases where Partner Government Agencies themselves draw the sample. 5. In view of above, the Commissioners of Customs are requested to issue suitable Public Notice based on aforementioned guidelines, prescribing detailed procedures for empanelment of laboratories, techniques for drawing dispatching of samples, mechanism to receive online reports etc., for guidance of all concerned. 6. Difficulty faced, if any, may be brought to the notice 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 W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories have now acquired testing facilities for some of the samples listed in the said Annexure following the up-gradation and induction of more sophisticated equipment. These items are listed in Annexure I annexed with this Circular. 3. Additionally, Revenue Laboratories have also acquired the facilities for testing items provided in Annexure II of this Circular. 4. Field formations may therefore first ensure with their respective jurisdictional laboratories that the testing facilities for any particular items listed in the said Circulars are not available with them before forwarding such samples to outside Laboratory(s) listed therein. 5. Principal Commissioners/Commissioners of Customs are requested to issue suitable Public notice to bring the same to notice of all concerned. 5. Difficulty faced, if any, may be brought to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the request of re-test. 5. In view of the facts, we find that the test report as submitted by the party is required to be accepted. Accordingly, we accept the same and classification as claimed by the party on that basis. The appeal is therefore allowed. The appeal filed by the CHA is also accordingly allowed. This Tribunal in the case of M/s. Manikya Creations Pvt Ltd-2019 (365) ELT 130 (Tri-All.) on the identical issue passed the following order: 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 16-11-2017, clarifying - that CRCL has shortlisted the items whose samples cannot be tested in their Laboratories at present and also identified the Lab, where such samples could be tested. Natural 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above directions were subject to adjudication of notice dated 13.04.2018 also subject to outcome of the sample testing report by CRCL, New Delhi. Report received from CRCL, New Delhi by the authority cannot be a ground for not releasing the goods provisionally and same is subject matter of the petition. If the goods are not released, as directed in order dated 17.09.2018, the Assistant Commissioner, custom House, Hazira, Surat shall remain personally present in the court on the next date of hearing. As per above order of the Hon ble High Court, the department vide letter dated 31.10.2018 requested the appellant to take charge of their goods the said letter is reproduced below : From the above, it is a submission of the counsel that despite accepting the High Court order, the department has not released the goods so far, therefore he also request direction to department for release of the goods immediately. We find that 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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