9911796707
TMI Blog2025 (3) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... l value as the test reports are cryptic and its results have been delivered after a long delay. In that circumstances, the test reports are not reliable test reports. In the case of M/s Moorgate Industries (I) Private Limited Vs. Commissioner of Customs (Port), Kolkata [2023 (12) TMI 963 - CESTAT KOLKATA], this Tribunal has observed 'Since the report of the Customs Lab is cryptic and incomplete without showing the BIS Standard and protocol and method of testing, it is noticed that the appellant sought to cross examine the Customs Officer who had drawn the sample and the Chemical Examiner who had tested the sample.' Admittedly, in this case, the samples were drawn in terms of International Standards. Moreover, the test report is cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C Limited on high sea sale basis (Ref. Long Term Agreement dated 24.09.2002 & Agreement dated 27.09.2022 between MMTC & the overseas supplier]. The Bills of Lading dated 10.09.2002 & 28.10.2002 specified that the quantity for the consignments was 25,366.255 MT and 32126.164 MT respectively. 2.2 The said agreements inter-alia provided that the total Moisture as received would be guaranteed at 5% maximum and above 10% would be rejected. The certificate of analysis and the certificate of weight determined at the load port will be final and binding upon the parties. If the total moisture in the product exceeds by 5% on an as received basis, the weight of moisture over and above 5% fractions pro-rata will be deducted from the total weight for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rential duty was payable to the authorities. Accordingly, two Show Cause Notices dated 07.11.2003 were issued to the Appellant. 2.7 The details of the differential duty proposed for the said Bills of Entry are provided herein-below for ease of reference : Details Bill of Entry No. 000226 Bill of Entry No. 000313 Date of Bill of Lading 10.09.2002 28.10.2002 Date of Bill of Entry 03.10.2002 29.11.2002 Imported Quantity (MT) as per Bill of Lading 25,366.255 32,126.164 Moisture Content (Load Port) 8.78% (Load port analysis by M/s. SGS-CSTC Standard Technical Services- Report dated 19.09.2002) 6.02% (Load port analysis by M/s. BSI Inspectorate Ltd.Report dated 28.10.2002 Moisture Penalty (%) 3.78% (8.78 - 5.00) 1.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finally prays that the impugned orders be set aside. 4. On the other hand, the ld.A.R. for the Revenue reiterated the impugned orders. 5. Heard both the parties and considered the submissions. 6. We find that in this case, the samples were taken by CRCL on 03.10.2002 for Bill of Entry No.226 and 29.11.2002 in case for Bill of Entry No.313 and the test report has been delivered on 20.11.2002 and 22.07.2003 respectively. The said report has lost their evidential value as the test reports are cryptic and its results have been delivered after a long delay. In that circumstances, the test reports are not reliable test reports. 7. Further, we find that in the case of M/s Moorgate Industries (I) Private Limited Vs. Commissioner of Customs (Por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Suppl. (1) SCR 586 = 1977 (1) E.L.T. (J 199) (S.C.), that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution's method should be applied. That this would apply to the Customs Act as well. IS 436 lays down :- ""5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING 5.1 Sub-lots - For the purpose of sampling, the entire quantity of coal in a ship shall be divided into a suitable number of sub-lots of approximately equal weight as specified in Table 1. 5.1.1 A gross sample shall be drawn from each of the sub-lots ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law. On fact, it has been more than amply proved that no representative of the appellant was, in fact, present at the time the Customs Inspector took the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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