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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.

14. As per Section 144 of the Customs Act, proper officer may take sample of goods imported, while it passing through customs area, in the presence of owner of goods for testing. But there is no provision how the owner of goods should take sample of such goods for his testing apart from the power of proper officer. So in view of this provision respondent taking sample without the knowledge of proper officer, does not hold good. The test result of Dhanbad and Calcutta Laboratories, with respect to the imported goods in favour of Respondent on its sample cannot be considered to decide the issue involved. In the absence of test result of the above laboratories, on the sample of the proper officer, and SGS report Australia which is based on the sample drawn by customs officer are the only available matters to decide this case. Out of this, the test report of CFRI Dhanbad dated 25.7.1991, showing phosphorus, on coke as 0.023% on the sample of proper officer, suffers from the defect of below minimum requirement for a representative sample as prescribed in IS specification. The test report of Dhanbad to both the parties also bear an endorsement in rubber stamp that "This is not a certificate and not valid for the purpose of contracts and cannot be produced on a court of law". So in view of this, Dhanbad Test Report cannot be relied upon for both sides. The question of getting clarification and additional information by customs Inspector to fulfill the requirement of IS procedure of taking samples and testing about proximate analysis as per the literature produced in the case, as observed in the impugned order does not arise. Both reports of Dhanbad loses its value.

17. Cross examination of Shri B.N. Ghosh, the then Assistant Director of NTH, Alipore Calcutta discloses that he tested on receive basis as per 1979 IS 1350 Part V. Result will be same, if it is tested even on air dry basis. Procedure for testing phosphorus content in metallurgical coke is as per IS 1350 Part V 1979 and it was adopted packing material cloth bag affects moisture content. For chemical analysis of moisture IS 436 Part II (1965) 1350 Part 1979) is adopted. Both samples of customs and party were tested by same procedure. But sample of Customs was on received basis, and of party on dry basis. Hence there was difference certificate dated 10.8.1992 issued by the director of Prototype Development and Training Centre. National Industries Corporation Ltd. Government of India undertaking shows that the test result 16.3.1992 of Shri B.N. Ghosh of NTH, Alipore Calcutta is not as per the specific standard, since the sum total of percentage of volatile metal ash and fix carbon is not 100%, when it was confronted in cross examination, Shri B.N. Ghosh has replied no comments to officer.

19. The sale contract of the Respondent with Minsment SA dt. 17.3.1991 describing commodity, and specification in clause 1 and 2, and satisfaction of meeting the above requirement of quantity, and weight, as per clause 7.2 and 10, on the sample drawn by SGS Honkong Inspector of Customs there which was analysed in accordance with international standard method, giving the analysis of total moisture on received basis, and rest dry basis, with the result of 0.030% of phosphorus present in coke, coupled with the affidavit of the secretary of Respondent, which stood unrebutted and the keen interest in getting the sample tested in India, and the efforts of the respondent association with no profit and (no) loss benefit, as observed in the impugned order, showing their bona fides in the transaction speaks of the charitable nature and genuine concern. As observed by both the lower authorities there are four test results of the imported coke, but none of them are shown to have been conducted as per the specified procedure of withdrawing sample and testing. So, as held by the appellate authority, Four results are in favour of respondent, with one belated result on the sample not properly drawn, as specified in the literature by the Customs Inspector Navalkhi, in favour of the department, the balance of convenience must really so in favour of the Respondent.