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TMI Blog1972 (3) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... m addressed to the petitioners, which is Annexure 'E' to the Writ Petition stating that a chemical test of the samples drawn petition the consignment revealed that 890 drums contained mineral Colza oil and 1,110 drums were found to be High Speed Diesel Oil suitable for use as an illuminate in wick lamps. As a consequence it was pointed out that there was a mis-declaration involving a loss of Rs. 19,339,12/- in import duty. The show cause why the goods should not be confiscated and a penalty imposed under Section 167, clause 37 of the Sea Customs Act. 2.In response to this notice, the petitioners wrote on 17th April, 1950, per Annexure `F' that they were surprised to learn that 890 drums had been found to contain mineral Colza Oil and there seems to be some mistake in testing the material. A copy of the test report was called for and an offer was made to pay the necessary fee. There was subsequent correspondence between the petitioner company and the Assistant Collector of Customs Appraisement, Calcutta, but inspite of this correspondence it appears that the test report was not supplied to the petitioners. There was also some further correspondence in which the petitioners urged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Board of Revenue on 29th January, 1951. This order directed the re-test of the materials contained in the drums in question. It was stated in this order that fresh samples may be drawn in the presence of the petitioners from the drums which had not been cleared through the Customs (this would mean the 50 drums retained) and these samples were to be forwarded to the Chief Chemist to test and report whether they were fuel oil for diesel engines. It was further stated that any remnants left out of the samples originally tested should also be sent to the Chief Chemist for re-test. However, the final order of the Board proceeded on the basis that no fresh samples were taken, but the original remnants had apparently been tested by the Chief Chemist. 5.The main question raised in this Writ Petition which is directed against the order passed by the Central Board of Revenue in 1952, is concerned with the validity of the order on the basis that there was no notice under Section 167(8) of the Sea Customs Act, 1878 and also that the entire proceedings were based on a report made by the Chemist of the Department, which report was never given to the petitioners and, therefore, there was non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not show that the whole case of the Department in the present case turns on the contents of the test report made by the Laboratory at Calcutta. It may be recalled that out of 2000 drums of High Speed Diesel Oil, 50 drums were retained and a test was carried out according to the show cause notice which led to the conclusion that 890 drums contained mineral Colza Oil while 1,110 drums contained High Speed Diesel Oil which was suitable for use as an illuminate in wick lamps. Both these conclusions are therefore entirely dependent on the reading of the Chemist's report in respect of the contents of the drums retained by the Customs authorities. 8.Mr. Jain, learned Counsel for the petitioners has cited a Division Bench judgment of the Calcutta High Court reported as Assistant Collector of Customs and Another v. Soorajmull Nagarmull and Another, A.I.R. 1952, Calcutta 656, which is a judgment in a case very similar to the one before me. In that case also oil had been imported from America in bulk and a chemical test was carried out by the Customs authorities in which it was found that the oil was mineral oil. In the import documents, the oil was described as spindle oil, but the chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as for this reason that the petitioners were seeking a re-test of fresh samples drawn from the drums in question in their presence. These samples were not drawn by the Customs authorities in the first instance, nor in compliance with the order of the Central Board of Revenue passed at the appellate stage. Even if the re-test report of the Chief Chemist supported the initial determination, this would not help in the identification of the report with the oil actually imported by the petitioners. I agree with Mr. Jain that the report must also be connected with the goods involved and the whole purpose of a re-test was to identify the goods with the samples and the test report with the samples. The rules of natural justice required not only a test report but also additional material evidence showing that the report was a report made with respect to samples drawn from the petitioner's drums. This evidence would have come into existence if the samples had been drawn from the drums in the presence of the petitioners. Thus, I must hold that the rules of natural justice have not been complied with and this has resulted in substantial injustice to the petitioners. 11.As I have already held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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