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3. The Ld. Sr. Counsel appearing for the respondent has strongly supported the impugned order, and has analysed the whole case in the light of the material available in the case. The respondent is an association incorporated since 1972, and have tried to solve the problems of the members with the different Government authorities, and it deals with the import of the raw material from the concerned companies at the competitive rates, and distributes to the members at a landing cost + overseas expenses. The motive is not to make any profit out of the material supplied to the member. The said association cannot be said to have any motive of getting any illegal benefit. The very fact that they entered into contract with mines sent S.A. Australia to get Metallurgical Coke with the Phosphorus content less than 0.35% is supported by the suppliers test report, from a well known laboratory, universally accepted as reliable one, of the samples obtained by the supplier out of the goods imported, showing the result of the phosphorus content less than 0.035%, supports the aim of the association. It is only after satisfying, the association has imported 1045 M.T. of Metallurgical coke from mines sent S.A. Australia. The Inspector of Customs has drawn the samples on 26.6.1991, from the imported goods during the course of unloading process only which commenced on 16.6.1991 and completed on 5.7.1991. The Inspector of Customs had drawn 4 samples totally weighing approximately 2 kgs., out of which one sample was sent to National Test House Alipore Calcutta, and another to Central Fuel Research Institute Dhanbad, for determination of the Phosphorus content in the metallurgical coke. The authorised representative of the respondent had also drawn the sample, and sent to the same laboratories and institute. The test result of the samples drawn by the respondents dt. 11.10.1991 and 24.7.1991 of National Test House Calcutta, and Central Fuel Research Institute, Dhanbad respectively showed the phosphorus content in the sample is less than 0.035%, according to which the respondents can claim the benefit of notification No. 23/91 dt. 14.3.1991, so far as the payment of auxiliary duty of customs is concerned. The show cause notice based on the test report dt. 16.3.1992 of the National Test House Alipore, Calcutta shows the abnormal delay of testing the samples received in July 1991, the said report was received by the concerned Inspector in September, 1991, but have not finalised assessment, and demand if any was liable to be raised within 6 months from the date of the receipt of the said results. The test result from Dhanbad, CFRI received by the Inspector was brushed aside without immediately acting upon it as he was duty bound. There was no reason as to why the test result of CFRI Dhanbad on the samples supplied by the department was not acceptable to the department. No evidence is produced to show that the test was defective. In the absence of it, not taking action immediately on the said report goes against the department. The time limit for issue of show cause notice starts from the date of test result is finalised. The show cause notice now issued without any allegation of suppression of facts etc. is clearly barred by time. When there are two contrary reports on the same samples the report which is favourable to the party should be accepted, and not the other way, that is favourable to the department. So on this count the demand made under the show cause cannot be upheld. The respondents cannot be denied the benefit of notification No. 23/91 dt. 14.3.1991 when the test report on the samples drawn by the Inspector of Customs shows that phosphorus content less than 0.035%. The test report given by the National Test House and CFRI, Dhanbad on the samples supplied by the respondents and the test result given by the CFRI, Dhanbad and the samples supplied by the department are only the reliable result. The 16.3.1992 test report of the Nation1 Test House Alipore Calcutta does not pertain to the samples drawn by the Inspector of Customs out of imported coke, in view of the inconsistent evidence of the Inspector and Chemical Examiner, Shri B.N. Ghosh in the cross examination regarding the seal of the samples and its condition when tested. The Inspector has admitted the samples were sent in the sealed condition but the Chemical examiner Shri Ghosh has admitted that it was not sealed. So the samples are not identified by them as one taken out of the imported coke. The Inspector of Customs who has taken the samples, has admitted that there is no prescribed procedure for drawing sample in the cross examination, which clearly shows his ignorance of the prescribed procedure in ISI 436 Pt-II 1965, which is not followed by him. Shri B.N. Ghosh who has tested the samples and the National Test House, Alipore Calcutta has avoided to answer important questions as evident from his cross examination. He has no comments to offer to the quantity of samples as per the ISI specification. He has not explained the standard procedure for testing the hygroscopic substances. He has relied on the Indian standard specification prescribed in ISI 1350 Part-5 1979 to conduct the test.

9. The show cause notice dt. 31.3.1992 issued in this case in para 4 demands duty on the grounds that the test result of the metallurgical coke of the National Test House Alipore, Calcutta dt. 16.3.1992 shows the phosphorus contents at 0.041% among the percentage of the contents, and the metallurgical coke in the bill of entry No. F. 12 to F. 21 dt. 19.6.1991 does not appear to be containing phosphorus not exceeding 0.035%, and the benefit of 50% Auxiliary duty under Notification No. 23/91 Customs dt. 14.3.1991 is not available to the respondent. Notice is issued under Section 28 of the Customs Act calling upon to explain why it should not be recovered. In response to that, the respondents in the reply dt. 25.5.1992 has denied the contents of the said notice and asserted that the benefit of the Notification No. 23/91 dt. 14.3.1991 as amended has rightly been applied for availing of the concession provided thereunder. The certificate No. 002291 of National Test House Alipore Calcutta vide letter No. CO(c) 91/7 dt. 11.10.1991 shows the phosphorus content in the metallurgical coke involved in this case as 0.030% by mass. The report of analysis dt. 24.7.1991 of CFRI Dhanbad shows the same as 0.033%, and the certificate of quality and weight No. EP1106 dt. 6.6.1991 issued by SGS Australia Pvt. Ltd. after having analysed in accordance with International Standard Method shows the phosphorus content as 0.032%. On 16.3.1992 the Test Certificate of National Test House Alipore is issued after more than six months of the receipt of the sample on 30.7.1991, after the subsequent correspondence ending with letter dt. 3.2.1992 received from the Inspector, Customs, Navlakhi Port. The Coke is having volatile matter which plays a great role in the context of variation in the percentage contents in the items of contents present in coke if lying exposed for a long period in a varied weather condition. The two certificates issued by National Test House Alipore Calcutta with an interval of 5 months in this case, when compared, shows the variation in the percentage in the items of contents, due to the factor like human eyes reading and weather condition. Some degree of allowance has to be given. The percentage favourable to the respondents has to be applied. There are 5 test reports in this case out of which only one belatedly issued certificate shows the phosphorus content at 0.041% in the metallurgical coke, and it cannot be considered for levying auxiliary duty. Merely because of the different conclusion, it is not permissible to select the conclusion which suits the authority to levy the duty. So the demand has to be withdrawn. Section 28 of the Customs Act, applies only to the completed assessment and not to the provisional one as per clause (3)(b). On the receipt of the test report, and after giving reasonable opportunity to the party to submit its case on the result of the test report, the final assessment has to be made. So on this count also the notice is not tenable the demand is unjustified, and is liable to be withdrawn. In the alternative, the cross examination of concerned Director Chemical National Test House Alipore Calcutta and Inspector of Customs Navlakhi Port, is sought for and an opportunity to convince in support of the case is also requested.

From the above, it is clear that the test report of Calcutta does not contain the quantity of sample received by Customs Inspector. Now what is the supporting and evidence is available on facts, is required to be seen. Cross Examination of Customs Inspector who has drawn the samples of imported metallurgical coke discloses that each sample drawn was from 500 gms to 1 kg. by mixing up the lot from different heaps and was different size and weight. It was packed in a cloth bag and sealed. Regarding the specific system in drawing the sample of metallurgical coke, when it is unloaded from the heaps, he has replied that as per his knowledge goes to bulk cargo the samples are taken as above. So from the above, it is clear that regarding the quantity of sample drawn he is not definite. It ranges from 500 gms to 1 kg. As already observed above Dhanbad CFRI has endorsed that 500 gms. (1 /2 kg.), quantity of sample is below the minimum requirement for testing the representative sample as prescribed in I.S. specification. So B.N. Ghosh Scientist, SC (Chem) Madras, the then Assistant Director in NTH Alipore Calcutta in his cross examination has stated that due to delay he cannot say the exact quantity of sample he tested. But, unless it is more than 500 gms. sample will not be tested. From this it can be referred quantity of sample was above 500 gms. and below 1 kg.

18. So from the above material on record, it is amply clear that 16.3.82 Test Result of National Test House Alipore, Calcutta suffers from various infirmities as can be gathered from paras 4, 5 and 6 and it cannot be safely accepted, in this case. As observed in the impugned order, there is an abnormal delay in testing the sample sent by Inspector of Customs in June, 1991 in March, 1992 for nearly 9 months, which is not properly explained delay for correspondence by the department is not satisfactory ground. As held in the impugned order even the drawal of sample by the Customs Inspector of the quantity of 500 gms. to 1 kg. out of 10450 metric ton of imported metallurgical coke is not in accordance with the specified procedure as narrated in detail in para 5 and 6. There is a lot of variation. Without replying by the National Test House, Alipore Calcutta to the Customs Inspector, about this lacunae, the test is conducted, limiting to carbon items only as required by the department. For Testing moisture content and volatile content, the quantity of sample in different increments, was required more for 10450 Metric Ton of metallurgical coke. The certificate of director of National Small Industries Corporation Ltd. a Government of India undertaking has opined that the report is not as per specified standard on the ground that since the sum total of percentage of volatile metal, ash and fix carbon is not 100% and it is accepted by Shri B.N. Ghosh Assistant Director, who conducted the test. Even sending of sample is also not proper as cloth bag absorbs water content in the sample.- There is variation of results by Calcutta Laboratory even though same procedure was adopted for testing the sample of both sides. So, as contended by respondent, some margin has got to be given in test result. The 16.3.82 Test report which has indicated 0.041% of Phosphorus content in the metallurgical coke imported by respondent is not correct and acceptable, as held by the appellate authority in the impugned order for the reasons discussed above.