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TMI Blog2024 (9) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... der CTH 28365000. In order to classify under the said tariff item, the 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. In the case of ASIAN GRANITO INDIA LTD [ 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, 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the department s claim of classification of the imported goods i.e. calcite powder as calcium carbonate under CTH 28365000 is based on Customs Laboratory report of Kandla which only opined that the goods is calcium carbonate. 5.1 We are of the view that firstly even if goods are calcium carbonate only because of this it is not classifiable under CTH 28365000. In order to classify under the said tariff item, the 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 130 (Tri. - All.) (b) Pavas Polychem (P.) Ltd. - 2018 (2) TMI 1573 - CESTAT ALLAHABAD (c) 20 Microns Ltd. - 2020 (372) E.L.T. 403 (CESTAT) (d) Gulshan Polyols Ltd. - 2019 (366) E.L.T. 728 (Tri. - All.) 3.2 He further argued that the most crucial aspect to determine whether a product is precipitated Calcium Carbonate or Calcite powder, is to check for Oil Absorption ratio and particle size , which determines whether the 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 dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will have a major impact on whether a case law is applicable to specific facts of the case or not. He further argued that Kandla Customs Lab was equipped to test the goods in question, otherwise, they would have informed regarding their inability to conduct tests. 4.1 He relied upon various case laws to the effect that test results of independent labs on basis of samples drawn in absence of revenue authorities cannot 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from Oil Absorption ratio, in light of the various case laws relied upon by the Appellant. 9 . Under the circumstances, there is no option but to go by the technical data sheet/description provided by overseas supplier for the products in question. Nowhere the suppliers refer to the product to be of Precipitated form at all. In fact, the presence of other minerals, the Oil Absorption Ratio shown in the technical data 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 find ..... 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