Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Customs And Central ... vs Tata Iron And Steel Co. Ltd. on 11 September, 2001
JUDGMENT
K.K. Bhatia
1. This is a Revenue Appeal against the order dated 6.7.2000 of Commissioner of Customs (Appeals), Calcutta I.
2. Briefly stated the facts of the case are that the respondents, M/s TISCO imported 21,926.782 MT Low Ash Metallurgical Coke (LAM Coke) in bulk ion on 12.10.95 and filed a Bill of Entry for this import on 13.10.95. They claimed the clearance of this Coke under the advance licences and the value based DEEC read with Notification No. 79/95-Cus dated 31.3.95 which allowed the clearance of LAM Coke without payment of duty on export obligation provided that the imported Coke had the ash contained less than 15% by weight. The samples were drawn from the imported consignment and the same were got tested by he chemical examiner at the Calcutta Customs House Laboratory who in his report dated 20/21.12.95 certified that the ash content in the sample in each case was more than 20%. Accordingly, the proceedings were initiated against the importers which culminated in the Assistant Commissioner of Customs, Paradeep passing of order dated 5.6.97 in which he held that the exemption under Notification 79/95-Cus dated 31.3.95 was not available to the importers. He observed that the chemical analysis of the sample of the imported LAM Coke clearly established that the same was not covered by the value based duty exemption entitlement since the ash content of the imported LAM Coke was more than 15%. Accordingly, he confirmed the duty of Rs. 1,78,62,165/- on the appellants.
3. The respondents filed an appeal and the Commissioner (Appeals), Calcutta vide his Order dated 6.7.2000 held that the Assistant Commissioner, Paradeep had neither dealt with any of the specific conditions raised by the appellants nor had be considered the appellants's request for re-testing of the sample. He further observed that the denial and refusal of the request of the appellants for re-testing of the sample tantamount to denial of natural justice and accordingly he set aside the order passed by the original authority and remanded the matter to him with the direction that he should get the samples available with the party on retained by the department either from the Central Government Laboratory Viz., CRCL, New Delhi or the National Test House, Alipore or any other autonomous institution.
4. The present appeal is by the Revenue against the above order of the Commissioner (Appeals). We have heard Shri A.K. Mondal, Ld. JDR for the Revenue and Dr. Samir Chakraborty, ld. Advocate for the respondents. The matter is listed for hearing the Stay Petition filed by the Revenue. Since the matter lies in a small premise, we dispense with the Stay Petition and proceed to decide the appeal on its merits. In the written memo filed by the Revenue it is contended that as per the Board's instructions dated 3.5.56 read with the Customs Appraising Manual Volume III page 62,63, there is a provision for re-testing of the samples by the Chief Chemist, Central Revenue Control Laboratory, New Delhi (CRCL). The procedure to be followed for such re-testing is also specified therein. The Revenue has, therefore, objected the direction of the Commissioner (Appeals) for re-testing the samples by the National Test House, Alipore or any other autonomous laboratories. It is contended that the re-testing by any other laboratories would arise only when the testing facility is not available with the Government Laboratories. Dr. Samir Chakraborty, ld. Advocate for the respondents has no objection if the representative samples held by the Customs House or by the party are got retested by the CRCL, New Delhi.
5. We have carefully considered the above submissions. It is a common ground before us that there is a provisions in the procedure for re-testing of the samples and there is no objection if the re-testing of the retained samples held to the Customs House or by the respondents and identified with the imported goods is got done through the CRCL, New Delhi. We, therefore, modify the order of the lower appellate authority to this extent and direct that the re-testing of the sample should be got done only through the CRCL, New Delhi. The final decision in the matter may be arrived at on the basis of the report of such-test.
6. The appeal and the stay petition are disposed off in the above terms.
Dictated and pronounced in the open Court.