Appeal dismissed due to procedural errors and unreliable test reports.

The tribunal rejected the appellant's appeal, upholding the impugned order due to procedural lapses in sample collection and testing, and the unreliability of the test reports provided. The tribunal emphasized that the respondent's position was supported by multiple test reports, leading to the dismissal of the appeal and the demand for auxiliary duty being deemed unjustified.

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Issues Involved:
1. Validity of the additional evidence considered by the Commissioner (Appeals).
2. Proper procedure for sample collection and testing.
3. Time-barred nature of the show cause notice.
4. Reliability of the various test reports.

Summary:

1. Validity of the Additional Evidence:
The appellant contended that the Commissioner (Appeals) improperly entertained additional evidence, specifically a Chartered Accountant's certificate, without providing a reasonable opportunity for cross-examination as required u/s 5(3)(a) of the Customs Appeal Rules. The tribunal found that there was no objection from the department regarding the additional evidence, and thus, the ground urged by the appellant does not hold.

2. Proper Procedure for Sample Collection and Testing:
The appellant argued that the test report from the National Test House, Alipore, Calcutta, based on samples drawn by the proper officer, should be considered valid. The respondent countered that the samples were not drawn according to the prescribed procedures under IS 436 Part II 1965 and IS 1350 Part V 1979. The tribunal noted that the sample collection by the Customs Inspector was not in accordance with the specified procedures, and the test report from National Test House, Alipore, Calcutta, suffered from various infirmities, including an abnormal delay in testing and improper sample quantity.

3. Time-Barred Nature of the Show Cause Notice:
The respondent argued that the show cause notice was time-barred as it was issued beyond six months from the receipt of the test report from CFRI, Dhanbad. The tribunal found that the notice was issued within the permissible period u/s 28(3)(a) of the Customs Act, considering the date of the test report from National Test House, Alipore, Calcutta.

4. Reliability of the Various Test Reports:
The appellant relied on the test report from National Test House, Alipore, Calcutta, which showed a phosphorous content of 0.041%, exceeding the permissible limit for exemption. The respondent presented multiple test reports, including those from CFRI, Dhanbad, and SGS Australia, showing phosphorous content below 0.035%. The tribunal observed that the test report from National Test House, Alipore, Calcutta, could not be safely accepted due to various infirmities and inconsistencies. The tribunal held that when there are multiple test reports, the one favorable to the party should be accepted, and thus, the demand for auxiliary duty was unjustified.

Conclusion:
The tribunal concluded that the appeal could not be allowed and rejected it, thereby upholding the impugned order. The tribunal emphasized that the balance of convenience weighed in favor of the respondent, considering the multiple test reports supporting their case and the procedural lapses in sample collection and testing by the department.

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