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TMI Blog2024 (10) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... l and reputed quality assurance certification agency etc., the procedure for mild dry roasting adopted by appellant and certified by M/s Intertek has not been examined in detail. Adjudicating Authority has also not examined whether dry roasting method of roasting is same as moderate heat treatment or otherwise in view of appellant s submissions in this regard. Further, specifications given by their buyer, which clearly places order for Roasted Cashew , nuts with moisture content of Max 5% and of plain ivory white colors has not been duly examined and considered. Original Authority has dealt with these defence in para 5.1 to 5.3 of Order-in-Original but it has not been effectively dealt with in the absence of any opportunity to the appellant to cross examine the authorised representative of CEPCI as also the fact that appellant never got chance to ask for Re-Test or question the method or parameters adopted by CEPCI. It is also interesting to note that as per scope of accredition for CEPCI, different test methods and parameters and specifications are available for dried roasted cashew, deep roasted cashew etc. Also Purchase Order of Unilever provides for tolerance of moisture in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate classification under Heading 08013210 and also ordered for recovery of differential duty of Rs. 8,80,16,885/- as a consequence to final assessment along with applicable interest. 3. The appellants, thereafter went in appeal before Commissioner (Appeals) on various grounds including non-reliability of Test Report of CEPCI Laboratory and Research Institute (CEPCI), whose test reports were relied upon by the Original Authority for arriving at the classification of the impugned goods. They also, interalia, took the ground that they were not provided with the opportunity for cross-examination of Authorised Representative of Laboratory for the reports having number 1435 and 1436, 1473-83 and 1503-09 dated 07.05.2019, 10.05.2019 and 10.05.2019 respectively. They also pointed out that the duplicate copies of 11 out of 20 reports were also not provided by respondents, despite request being made in writing. Therefore, impugned order has been passed against them in violation of the principles of natural justice. 4. The Commissioner (Appeals), vide his Order-in-Appeal dated 11.09.2020 (impugned order), interalia, agreed with the conclusions drawn by the Original Authority that they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting laboratory accredited by NABL, notified by the FSSAI and fully funded by the Government of India, cannot be brushed aside, only for the reason the appellant is sceptical of some bias, unless compelling counter evidence is available. The Order-in-Original therefore merits to be upheld. The Commissioner (Appeals), in Para 5.6 also dealt with the request of the appellant regarding choice of Test Lab and observed that since there was no response from FSSAI, New Delhi and Food Testing Laboratory, JNTU, Kakinada on the reference made by the Department, samples were forwarded to the CEPCI Laboratory Research Institute, Kollam, for analysis. 5. The Learned Advocate for the appellant has mainly argued that meaning of roasting or level of roasting to classify the product, either under Chapter 8 or under Chapter 20, has not been defined anywhere and also submits that when the valid certificate of origin describes the impugned goods as roasted cashew falling under CTH 2008, it has to be given the same meaning by the Customs also, if the veracity of the certificate of origin itself is not doubted. They have also relied on the purchase orders received from the Indian Buyers namely Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA and Authorised Representative of the appellant by way of additional submissions dated 11.09.2024 has further submitted that the Adjudicating Authority has not considered some of their requests in the course of adjudication. She has specifically highlighted that CEPCI report was not shared with the appellant before issuance of show cause notice thereby depriving them with liberty to get the report cross checked through any other designated agency. Further, the appellant requests for cross examination of report was also ignored and the basis for classification was adopted by the Department was only the CEPCI report which according to him suffers from various inconsistencies. She has point out that CEPCI is neither recognised body to classify the product under CTA nor has the prescribed parameter to test the product and there are many ambiguities in their own report. By way of example, it was point out that CEPCI has taken different stands in respect of Report No. 6579 dated 02.11.2018 and Report dated 07.05.2019 and 10.05.2019 while in the report no. 6579 the moisture content in roasted cashew as per CEPCI has been shown as 3% whereas in the report dated 07.05.2019 and 10.05.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dried fruit or dried nuts. 11. On the other hand, Chapter 20 does not, interalia, include roasted fruits or nuts prepared or preserved by the processes specified in Chapter 7, 8, 11. Therefore, a conjoint reading of the Chapter 8 and Chapter 20 would indicate that certain products including nuts if they are prepared or preserved by the processes and to the extent specified in Chapter 8, it would not get covered under Chapter 20. However, if any process goes beyond this, it would go to Chapter 20. In the present case, there is provision for additional preservation or sterilization of dry fruits or dry nuts as well as for meeting or maintaining their appearance as long as they retain the character of dry fruits or dry nuts. In other words, as long as the dry nuts retain their original character as dry nuts, subjecting it to certain activities for additional preservation or sterilization or for improving or maintaining their appearance etc., like moderate heat treatment would not make them liable to be classified under Chapter 20. Further, it is noted that by way of example, certain processes have been indicated in the Chapter Note 3 of Chapter 8 like moderate heat treatment, sulphur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary support. Therefore, in essence, documents and submissions made by appellants to prove that the report in question cannot be the sole criteria for deciding the classification has not been accepted by the Original Authority. He has also ruled out the reliance placed on the analysis certificate issued from their overseas supplier on account of their being related parties and holding that it appears to be in the nature of self certification. 14. Therefore, essentially, in this case, the entire classification is based on the test report of CEPCI. Admittedly, there is no standard parameters for distinguishing between raw cashew or roasted cashew nor there is any definitive definition for terms like dry roasted, moderate heat treatment etc., in the statute. Therefore, the inference has to be drawn based on the technical parameters given by the test laboratory and of experts, which in this case is CEPCI. Moreover, the norms adopted by CEPCI cannot be considered as Sacrosanct in the absence of any notified parameters by the Government of India for such goods and especially in the face of various other available parameters in terms of international bench marks, testing reports, studies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicate copy of 11 out of 25 test reports despite asking for the same. 16. We have perused the Order-in-Original and it is noted that there is no reference to the letter dated 24.07.2019 in the said order of the Original Authority though there is a reference to letter dated 04.09.2019 whereby the appellant had asked for copies of the test report in respect of 11 consignments. No observations have been made by the Adjudicating Authority as to whether it was provided or not required to be provided. What is also observed that while the appellants have given various submissions for negating the parameters adopted by CEPCI, as also relevant documents like certification by M/s Intertek, a global and reputed quality assurance certification agency etc., the procedure for mild dry roasting adopted by appellant and certified by M/s Intertek has not been examined in detail. Adjudicating Authority has also not examined whether dry roasting method of roasting is same as moderate heat treatment or otherwise in view of appellant s submissions in this regard. Further, specifications given by their buyer, which clearly places order for Roasted Cashew , nuts with moisture content of Max 5% and of pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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