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23. In view of the aforesaid submissions it was prayed by the appellants that, the impugned Order-in-Appeal is liable to be set aside.

24. In response, the AR of the department contested the appeal by firmly reiterating the points made by lower authorities. The Department sought, inter alia on the sampling procedure as laid down by the department itself in Chapter relating to appraising manual Volume-II issued by the department for sampling of Cargo same is reproduced below for ease of reference:-

26.2 In the submissions dated 11-8-2023 filed by learned AR (Copy emailed to the Appellant's Advocate on 14-8-2023), the learned AR has placed on record letter dated 10-8-2023 of the Assistant Commissioner of Customs, forwarding extract from Appraising Manual Volume II. 26.3 The Appellant's response to the same is as follows. 5. Firstly, the year of the Appraising Manual is not indicated and it is not shown that the same pertains to the year 1995, when the import in the present case took place. On this ground itself no reliance can be placed on the said Appraising Manual. 26.4 Secondly, without prejudice to the aforesaid submission, it is submitted that there is nothing in the said Appraising Manual which prescribes the method/ procedure of drawing of samples of Coal. Neither the letter of the Assistant Commissioner nor the letter of learned AR has specified any particular Para of the said Appraising Manual which prescribes the method/ procedure of drawing of samples of coal. There is no Para in the said Appraising Manual which prescribes drawing of only Random Sample of Coal as against the method of Systematic Sampling of Coal provided in IS 436, which requires dividing the entire quantity of coal into sub-lots and drawing of gross sample from each sub-lot and arriving at the average of test results of all sub-lots. In fact, at the hearing on 26-7-2023, the learned AR had produced letter from Assistant Commissioner forwarding the IS 436 as providing the applicable method for sampling of coal. 26.5 Accordingly, in terms of the said decision of the Hon'ble Supreme Court in Tata Chemicals Ltd v CC - 2015 (320) ELT 45 (SC), since no method/procedure of drawing of sample of imported Coal is prescribed in law, the applicable method/ procedure of drawing of sample of Coal is that 13 | P a g e C/12233/2014-DB provided in IS 436, which provides for Systematic Sampling by dividing the entire quantity of coal into sub-lots and drawing of gross sample from each sub-lot and arriving at the average of test results of all sub-lots. Further, as held by the Hon'ble Supreme Court, when this method has not been followed by the department, no reliance can be placed on the Test report of such sample.

26.6 In the present case, it is evident from the Show Cause Notice (Page 19 of the Appeal) that only random sample was drawn and Systematic Sampling as per IS 436 was not carried out. Consequently, as laid down by the Hon'ble Supreme Court, no reliance can be placed on the Test report of the Sample drawn by the department, which was not in accordance with IS 436. 9. In his letter dated 10-8-2023, the Assistant Commissioner has contended that office of customs had drawn the sample as per the standard procedure prevailing at the material time. However, no evidence has been cited to establish that "Random Sample" procedure was the standard procedure prescribed in law at the time of import. The Appraising manual relied upon has nowhere prescribed such procedure. On the contrary, in aforesaid decision of Hon'ble Supreme Court in case of Tata Chemicals, which pertained to import of 1991, the Hon'ble Supreme Court has categorically held that no procedure/ method of sampling had been prescribed in law for Coal and therefore the procedure/ method provided in IS 436 will apply, which requires dividing the entire quantity of coal into sub-lots and drawing of gross sample from each sub-lot and arriving at the average of test results of all sub-lots. 10. The Assistant Commissioner has in the said letter dated 10-8-2023 further contended that no objection as to the method of Random sample had been raised by the Appellant's representative at the time of drawing of sample. Such a contention of the department stands rejected by the Hon'ble Supreme Court in the said decision in Tata Chemicals Ltd v CC - 2015 (320) ELT 45 (SC), in which in Para 17, the Hon'ble Supreme Court has held that there can be no 14 | P a g e C/12233/2014-DB estoppels against law and since in law as laid down by the Hon'ble Supreme Court, sampling of coal ought to be as per IS 436, it had to be done in that manner only and since it was not done in that manner, it had no existence in law and merely because the Appellant did not object at the time of sampling, it will not convert the illegality into a legal act. 11. Further, the Hon'ble Supreme Court has held in Para 14 of the said judgment, that in absence of there being any reason or ground to doubt or reject the Load Port Test Certificate showing ash content below 12%, as defective, resort to provisional assessment and the entire chemical analysis of the imported goods done by the Department is ultra vires Section 18(b) of the Customs Act. 12. The said ratio and principle laid down by the Hon'ble Supreme Court squarely applies in the present case. In the present case also, the Appellant's claim for exemption as Coking Coal of ash content below 12% was duly supported by the Load Port Test Certificate, as per which the ash content was below 12%. The Show Cause Notice on Page 19 of Appeal records that the Appellant had claimed the exemption based on the Load port test report. However, no reason or ground has been mentioned for doubting or rejecting the said certificate as defective. Consequently, the assessing officer had no jurisdiction to resort to provisional assessment under Section 18 by sending the sample for test and accordingly, the entire chemical analysis of the imported goods done by the Department is ultra vires Section 18(b) of the Customs Act. 13. In fact, the Appraising Manual relied upon by the department also states that drawing of sample and resort to provisional assessment must be reserved only to cases where drawing of sample is really justified. In the present case since no reason had been advanced for doubting or rejecting the load port test certificate, as held by the Hon'ble Supreme Court in the said decision in Tata Chemicals, there was no real justification for resort to provisional assessment and drawing of samples.

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27. Considered the rival submissions and arguments. We find that in this case, department was asked to disclose the sampling procedure by providing various opportunities. The department was also asked to disclose if any particular method of testing was evolved for checking of ash content in accordance with Customs Tariff or any particular procedure was formulated. It being a settled law, that if no procedure of testing is evolved the same can be done as per the ISI Standard which, in the case of coke required it be done not through random sampling but through systematic sampling as provided in IS-436 which required that a lot while it is being discharged be divided into a number of sub lots approximately of equal weight. A gross sample is then required to be drawn from each sub lots by drawing of samples from the same sub lots. The appellant therefore, submits that the sampling not having been done as per the procedure laid down in IS 436. the samples drawn and the test result obtained were rejectable. Party has also relied upon the factum of delay in sampling of 11 months. Department on the other hand has relied upon the fact that the sample were sent for test immediately and therefore the delay if any is only in the receipt of the test report which was received after 11 months. Further, they also seek to rely on a reference letter dated 18.10.2013 and which was written decades after the result from CRCL. Same however does not being on record the exact date of test in those months. The letter states that gap in testing time will not make difference in ash content. We find that the learned Commissioner (Appeals) in para 13.2 has found as follows.-