Custom, Excise & Service Tax Tribunal
Krishna Petrochemicals vs Ahmedabad on 3 August, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
REGIONAL BENCH - COURT NO. 03
CUSTOM Appeal No. 10302 of 2015
[Arising Out Of OIA-AHM-CUSTM-000-APP-327-328-14-15 Dated-12/11/2014 Passed By
Commissioner of CUSTOMS-AHMEDABAD]
Krishna Petrochemicals .....Appellant
207/301, Samaan-ii, Nr, Reliance Petrol Pump,
Nr, Anandnagar Cross Road, Ramdev Nagar,
AHMEDABAD,, GUJARAT
VERSUS
C.C.-Ahmedabad .....Respondent
Custom House, Near All India Radio Navrangpura, Ahmedabad, Gujarat WITH CUSTOM Appeal No. 10969 of 2016 [Arising Out Of OIA-AHD-CUSTM-000-APP-344-15-16 Dated-29/01/2016 Passed By Commissioner of CUSTOMS-AHMEDABAD] Krishna Petrochemicals .....Appellant 207/301, Samaan-Ii, Nr Reliance Petrol Pump, Nr Anandnagar Cross Road, Ramdev Nagar, Ahmedabad, Gujarat VERSUS C.C.-Ahmedabad .....Respondent Custom House, Near All India Radio Navrangpura, Ahmedabad, Gujarat APPEARANCE:
Shri. Amal Dave, Advocate for the Appellant Shri. Himanshu P Shrimali, Superintendent (Authorized Representative) for the Appellant CORAM: HON'BLE MEMBER (TECHNICAL), MR. RAJU HON'BLE MEMBER (JUDICIAL), MR. SOMESH ARORA FINAL ORDER NO.A / 11667-11668 /2023 DATE OF HEARING:03.08.2023 DATE OF DECISION:03.08.2023
2|Page C/10302/2015&C/10969/2016 -DB SOMESH ARORA Appellant imported the goods termed as 'mixed acid oil' which were falling under head-38231900. As against this, the department went for testing for the product to Chemical Examiner who initially opined that the goods were other than acid oil after certain tests were conducted. Aggrieved by such findings, the appellants requested retest which was denied to them. However the department in its wisdom sought clarity from Chemical examiner as to what the product was, if not mixed acid oil. In response, the Chemical Examiner mentioned that the product was palm based vegetable oil. Accordingly, the department sought to classify the same under TH- 15119090, as the product was found to be a type of palm oil. Further aggrieved, during the course of hearing, the appellants sought cross- examination of the Chemical analyst which was denied to them.
2. When confronted with the factual matrix as above, the learned AR reiterated the findings of the lower authorities and also placed on record a public notice which underlines the process of testing of imported goods. Same bearing Public Notice No. 14/2006 dated 10.02.2006. He relied upon the public notice to emphasise that retest should be sought within a week of the communication. As against this, the learned advocate mentioned that the final report was communicated to them on 13.05.2010 and retest was sought by them on 03.06.2010 which was within very reasonable time looking at the nature of goods involved. We find with the public notice while mentioning the time of one week does not quote any legal authority and the time of one week does not appear to very reasonable to us and cannot be applied as a general period irrespective of nature of goods involved.
3. In view of the facts that the retest was sought within two weeks, the department should have granted the same. If, however, the same could not
3|Page C/10302/2015&C/10969/2016 -DB be granted for any reason, then alternatively the cross examination of the Chemical Analyst should have been afforded, as was desired by the appellant during the course of hearing. This was more so as the initial findings of chemical analyst were found inconclusive, even by the department and justified appellant's critically bringing on record the detailed basis of his finding that the impugned product was 'Palm Oil'. Department not having done so, the appellants have been denied, right of proper defense. Accordingly, we remand the matter to the original adjudicating authority with direction to at least offer either the retest or the cross examination of chemical analyst to the appellant.
4. The appeal is allowed by way of remand.
(Dictated and pronounced in the open Court) (RAJU) MEMBER (TECHNICAL) (SOMESH ARORA) MEMBER (JUDICIAL) Prachi