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TMI Blog2024 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... est the imported goods in question. Therefore, in such case any report given by the said laboratory which is not equipped with the facility of testing such product, the test report cannot be accepted as correct and on that basis classification cannot be decided. In the decision of M/S. ASIAN GRANITO INDIA LIMITED VERSUS C.C. -MUNDRA [ 2020 (8) TMI 615 - CESTAT AHMEDABAD ], it can be seen that since laboratory were not equipped at the relevant time, it was held that the test report of such laboratory cannot be accepted. The department s claim of change of classification also will not sustain. Thus, the finding the claim of the revenue to classify the calcite powder imported by the appellant being based only on Chemical Examiner Report of Customs Laboratory, Kandla which is not equipped for testing the goods in question has no legs to stand. The impugned order is set aside - appeal is allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri. Vikas Mehta, Consultant for the Appellant Shri A R Kanani, Superintendent (AR) for the Respondent ORDER The issue involved in the present case is whether the appellant's imported goods calcium Carbonate is classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods should be in confirmation to IS standard and must meet with the parameters provided in the IS specification. However, in the present case no such test was done. Secondly, as per Board Circular No. 03/2007-Cus dated 16.11.2017 and Board Circular No. 15/2019-Cus dated 07.06.2019. The board itself has endorsed that the Customs Laboratory, Kandla did not have the facility to test the imported goods in question. Therefore, in such case any report given by the said laboratory which is not equipped with the facility of testing such product, the test report cannot be accepted as correct and on that basis classification cannot be decided. The decision of ASIAN GRANITO INDIA LTD (supra) directly applies in the present case is reproduced below: The issue involved is that whether the Calcite Sand (Calcite Powder) imported by the Appellant is classifiable under CT 2503 90 30 as claimed by the Appellant or required to be classified under CTH 2836 50 00 as confirmed vide the impugned order. 2 . The facts of the case are that based on SIIB Kandla investigation, samples were drawn from the imports made under different Bills of Entries, and the Kandla Customs Laboratory reported that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcium Carbonate is precipitated or natural. This was also taken due note of by the Hon ble CESTAT in the case of 20 Microns (supra). Since the Kandla Lab had no facility to test the product in question at all, and did not test particle size anyway, the said test reports clearly need to be discarded. Without prejudice, It is his submission that in any case, the findings of test reports should be restricted to particular lot of goods imported under respective BEs and not to all past imports. The Appellant also claims to have obtained independent test report from Central Glass Ceramic Institute, Naroda Center (CSIR), to justify that based on certain parameters, the products imported are natural calcite powder only and not precipitated Calcium Carbonate. 3.3 He also drew attention to IS 63 : 2006 being the Indian Standards for requirements and methods of sampling and test for naturally occurring calcium carbonate, that is, whiting for manufacture of paints and putty as also IS : 8767-1978, i.e. the Specification for Precipitated and activated Calcium Carbonate for Paints, the range of Oil Absorption and other parameters are not found in the present case at all. This IS : 8767-1978 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relied upon. He also relied upon various case laws to suggest that test report of Govt. chemical examiner cannot be brushed aside. He further argued that contemporaneous imports by other importers suggests the classification to be that under CTH 28 and not CTH 25. 5 . We have carefully considered the submissions made by both the sides and perused the records. We find that the appellant had claimed at the threshold that the Kandla Customs Lab is not equipped to conduct test on Calcite Powder and even drawl of sample was also disputed as being improper. While in general, it is true that test report of CRCL cannot be brushed aside lightly, however, when CBEC itself categorically admits that for calcite powder, their Labs were not equipped to test the same till 2019, as evident from Circular No. 43/2017-Cus., dated 16-11-2017 as also Circular No. 15/2019-Cus., dated 7-6-2019, the Kandla Customs Chemical Lab reports as relied upon in the impugned order have to be discarded. The various case laws as relied upon by the Appellant, duly based on the said Board Circular dated 16-11-2017, in the context of classification of calcite powder and precipitated calcium carbonate, are well founde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sheet otherwise show that the product in question is not Precipitated and hence, the classification sought for by the Appellant under CTH 2503 90 30 therefore has to be upheld. 10 . We also agree with the contention that there is no estoppel against the law and irrespective of handful of imports by other importers or by Appellant himself after Jan., 14 under CTH 2836 50 00, the burden is cast upon the revenue to dislodge the classification assessed under the BEs already filed by the Appellant, and based on mere test reports by Kandla Customs Lab, which was admittedly not equipped to conduct such tests, such burden is not discharged by the revenue authorities in the present case, so as to alter the classification of the imported goods. 11 . In view of our above findings, the differential duty demand, interest, fine and penal action is not sustainable. Hence the impugned order is set aside. Appeal is allowed with consequential reliefs, if any arise, in accordance with law. In the above decision, it can be seen that since laboratory were not equipped at the relevant time, it was held that the test report of such laboratory cannot be accepted. The department s claim of change of clas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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