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TMI Blog2004 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... er Technology and Director of Department of Chemical Technology, University of Bombay, (v) Letter dated 7th April, 2004 of The Sugar Technologists' Association of India, and (vi) Letter dated 11th June, 2004 of Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (vii) Extract from the Book titled, "DEFOAMING Theory and Industrial Applications". 2.The Department, however, without disputing, the material or arriving at or and giving any reasons why Refined Coconut Oil is not a Reducing chemical and Antifoaming chemical used the manufacture of White Sugar and accordingly was to be objected for clearance under the DFRC licence produced. The Assistant Commissioner of Customs, Group 7, by his order and decision contained in, and communicated by, his letter dated 6th August, 2004 refused to allow clearance to the said goods against the DFRC licences produced and holding that clearance to the said goods cannot be granted under the DFRC licence, the order reads as - "Kindly refer to 02 Bills of Entry No. 459958 468260. Wherein you have sought clearance of Refined Coconut Oil under DFRC Licences. DYCC vide report dated 9-6-2004 TR No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay. (e) Letter dated 7th April, 2004 of The Sugar Technologists Association of India, and (f) Letter dated 11th June, 2004 of Government of India, Ministry of Consumer Affairs and Public Distribution. I find that the report of DYCC is very specific on the issue. The appellants should have challenged the opinion of DYCC, which they have not done. Accordingly, I am unable to accept these fresh materials. Further more as per the Licence, the goods allowed as per the licence are antifoaming agents (antifoaming chemicals)/viscosity reducing agents (viscosity reducing chemicals). The imported goods are classified under Chapter 15, as Vegetable oil, and the same cannot be called a chemical, which should have been classified under Chapter 29. Further more the goods being in the canalized list of items, Certificate from STC is also required. I do not find any reason to interfere with the decision of the lower authority." Hence the present Appeal. 3.Heard both sides and considered the matter it is found - (a) The Commissioner of Customs (Appeals) seriously erred in ignoring and disregarding the following evidence which was placed before the Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id officer is appointed under section 3(e) of the Customs Act, 1962 as an Officer of Customs is also not shown. The reasons arrived at by the Commissioner exhibit a total lack of application of knowledge with a pre set mind to dismiss an appeal, without having any reason to do so. This order of the Commissioner (Appeals) is therefore to be set aside. (d) The Commissioner (Appeals), has seriously erred in holding that the Dy. CC opinion was very specific on the issue. The opinion as referred to, merely states that no literature is available with the Dy. CC to show the use of Coconut Oil as Antifoaming or Viscosity reducing agent in Sugar industry. There was no positive and specific opinion of the Dy. CC that coconut oil is not so used. The mere fact or the Dy. CC inability and ill-equipped library to locate such literature, will not mean, that there is no literature/material at all, which shows the use of coconut oil as antifoaming/viscosity reducing agent. The technical/expert authorities reports, such as the UDCT, IIT, National Sugar Institute, etc. is teeming with such Literature/material and they rely upon the same to opine, based on literature cited by them, that cocon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, to establish that Refined Coconut Oil does not possess Antifoaming and viscosity reducing properties. On the other hand the evidence obtained by Customs before the Assistant Commissioner had clearly and consistently established that Refined Coconut Oil possesses Antifoaming and viscosity reducing properties. The Assistant Commissioner has erred in concluding that Refined Coconut Oil does not possess Antifoaming/viscosity reducing properties merely because the report dated 9th June, 2004 of the Deputy Chief Chemist is silent on the fact as to whether Coconut Oil is used as Antifoaming/viscosity reducing agent in the manufacture of white sugar. The mere fact that the DYCC report was not positive on this aspect due to lack of infrastructural facility cannot by itself lead to the conclusion that coconut oil does not possess the said properties when on the other hand evidence in the form of technical opinion from various technical institutes/authorities and had been placed before the Assistant Commissioner should have been relied upon as they clearly state that coconut oil is used as an Antifoaming/viscosity reducing agent in the manufacture of white sugar. (f) The rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oconut oil is listed in the Condensed Chemical Dictionary having CAS number and IIT's Prof. report is itself sufficient to establish that. The Commissioner (Appeals) has erred in travelling beyond the Order of the Assistant Commissioner by holding that Coconut Oil cannot be called a chemical. He erred in concluding that Coconut Oil is not a chemical because it is classified under chapter 15 of the Customs Tariff and not under chapter 29. That is presuming that chemicals fall only under chapter 29 of the Tariff, and in no other Chapter. (i) On perusal of Paragraphs 2.11 4.31, 4.31 A of the Exim Policy Hand Book of procedure volume I Rank 2003 Edition as on 1-4-2003. Since it is clear that coconut oil under import cannot be denied coverage and eligibility under the DFRC licence produced, the same is to be held to be validly imported. Proceedings on the basis that since Coconut oil is canalized through STC the same cannot be imported, without a certificate from STC ignore that it is clear from the ITC (HS) Policy Heading 15.13, that though the import of coconut oil is permitted through the State Trading Enterprise, subject to Paragraph 2.11 of the Exim Policy. A plain re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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