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TMI Blog2024 (8) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... s imported by the appellant is Naphtha or other ? HELD THAT:- It is found that Tribunal had remanded the matter back for conducting fresh cross-examination of the witness/ Chemist Assistant Grade-I, who was directed to produced the lab records to prove his assertions. From the records of the cross examination so conducted on 22.12.2022 it is apparent that in the reports and lab records there was no mention of the prescribed test having been followed while testing the subject goods and the witness orally insisted that the prescribed test was carried out while testing the subject goods. In the present matter Appellant also strongly argued that the witness during the cross examination changed his stand while answering the questions so asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by them was issued by M/s. Atlas Inspection Services Ltd., Iran and full specifications were exhibited containing 12 parameters in the said certificate of quality. The test report produced by the department does not indicate the procedure adopted. The finding of the adjudicating authority that the goods in question are not Naphtha , agreed upon. The impugned order is set aside - appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Rajesh Rawal , Advocate Shri Vikas Mehta , Consultant for the Appellant Shri Sanjay Kumar Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR These appeals have been filed by the Appellants against the impugned Order In-Original No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2004 were filed by M/s. Neptune Tradelinks Pvt. Ltd., M/s. Hazoor Sahib Chemicals Pvt. Ltd. and to M/s. Worldlink T.C. Bond Store respectively, declaring the imported goods as Naphtha while classifying the same under CTH 2710 11 19 attracting, besides others, basic customs duty @ 10%, while claiming benefit of Entry No. 74 of exemption Notification No. 21/2002-Cus., dated 1-3-2002 as amended. Representative samples of the imported goods were drawn on board the vessel on 31-7-2004. The two sealed samples so drawn were forwarded to the laboratory of Custom House, Kandla for testing vide letters dated 4-8-2004. 1.4 On completion of investigation, a show cause notice dtd. 19.01.2005 was issued to the appellants proposing denial of the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. Ld. Commissioner vide impugned order has duly acknowledged that the record maintained by the Chemical Examiner did not mention the method of testing. However, he has again upheld the allegation by observing that Chemical Examiner has repeated many time they had followed ASTM D86 method. As per Shri T.K. Mylvagnan, the sample falls under Group 1 as per ASTM D86 method. The Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure published by ASTM International, United States prescribed specific conditions in relation to testing of items covered by Group 1. these are:- (i) Table 1 - Preparation of Apparatus (ii) Table 3- Sampling, storage and Sample Conditioning. (iii) Table 5- Conditions during test procedure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the whole issue to resolve is whether the goods imported by the appellant is Naphtha or other . Appellant has imported the goods and declared the same as Naphtha falling under Chapter 2710 11 19 of the first schedule of the Customs Tariff Act claiming benefit of Notification No. 21/2002-Cus., dated 1-3-2002. After drawal all of samples and testing Revenue sought to classify the same as others falling under Heading 2710 19 90 instead of the same being treated as Naphtha falling under Heading 2710 11 19 as declared in the Bills of Entry. Revenue has got it s samples tested in their laboratory as well as in the laboratories of M/s. Reliance Industries Limited and Oil India Limited. In this context it would be relevant to refer here sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver time was given to file submission in writing in regard to the above aspect/request for further cross-examination. Appellant, accordingly submitted the submission vide his letter dtd. 30.12.2022 before the Ld. Commissioner and again requested for cross-examination. However the said submission not considered by the Ld. Commissioner in impugned order. We find that this approach of the Ld. Commissioner in judicial proceeding not correct and clearly against the judicial disciplines. It was mandatory to ask the said witness questions on different aspects of the prescribed test and also to confront the lab records to him and it was for him to prove his assertion that the said prescribed test method i.e ASTM D86 method was followed while testin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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