TaxTMI 
TaxTMI 
2009 (8) TMI 439
X X X X Extracts X X X X
X X X X Extracts X X X X
....y, if the Ash Content in the coal is less than 12%. 3. It is seen that at the time of filing of bill of entry, the appellant produced certificate of quality issued by the supplier of the goods at Indonesia and produced by them at the Load Port certificating the Ash Contents in the coal to be 9.98% (Air Dried) in accordance with ASTM capital method. At the Discharge Port, samples were again drawn for every 2000 Metric tones of the said goods discharged by M/s. SGS India Ltd., who also conducted the tests and vide their test report dated 25-4-97 have certified the Ash Content as 10.20% (Air Dried). 4. The bills of entries so filed by the assessee were assessed provisionally. The Customs House at the Discharge Port drew samples and sent the same to the Customs House Laboratory, Kandla. The test report of the said laboratory showed the Ash Contents as being 14.4%. As the said laboratory suggested that samples be tested by Central Fuel Research Institute, Dhanbad, the same were sent to the said laboratory who by their test report dated 13-7-98 reported the Ash Contents to the tune of 13.2%. Based upon the result of the above two test reports conducted by Customs House Laboratory, Kand....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2%. On the other hand the two reports produced by the Revenue are contrary to each other inasmuch as in the Customs House Laboratory, Kandla test report the Ash Contents has been shown as 15.9%, whereas the Dhanbad Laboratory has shown the same to be 13.2%. As such the decreased Ash Contents as shown by Central Fuel Research Institute, Dhanbad, as compared to the Ash Contents shown by Kandla Laboratory lead to only one fact that the said two reports are not reliable and should not be made the basis for confirmation of demand against them. He has also relied upon various Tribunal decisions to support his above pleas. 8. Countering the arguments learned SDR, Shri Rajendra Nagar, draws our attention to the impugned orders and submits that the authorities below have correctly relied upon the report of the Chief Chemist of Customs House Laboratory as also the Central Fuel Research Institute's report. The cross-examination conducted by the appellant has nowhere established that the said reports were not correct. To challenge the said reports based upon the method of drawing of samples or on the basis of the time gap is not appropriate. He further submits that inasmuch as Ash Content was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve report a suggestion was made to send the sample for further testing to Central Fuel Research Institute. Accordingly, the sample was sent and a report was received from the said institute on 13-7-1998 i.e. almost after 10 months from the report of the chemical examiner. As per the said report moisture on air dried basis was to the extent of 9.5% and Ash on air dried basis was to the tune of 13.2%. It was disclosed in the said report that "sampling not done by CFRI". Further, the said report carried remark to the effect that - "the quantity of the sample is not representative as per IS: 436 (Part-1/ Sec-I) -1964 (Part-II)-1981." 11. The above two reports are the basis for denial of exemption notification to the appellant. As such the sole question is as to whether the said two test reports can be held to be reliable and more effective than the two certificates of Load Port and M/s. SGS India Ltd., which are in favour of the assessee. 12. Learned advocate has drawn our attention to the various discrepancies so as to submit that the said two reports do not reflect the correct position. Apart from the fact that the sample was kept by the Revenue with them for a period of four month....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to be done in accordance with IS: 436. There is nothing on record to show that the sample was drawn in accordance with IS:436. On the other hand the test report of CFRI shows that the quantity of the sample was not representative as per IS: 436. In such a situation, can it be said that the samples were drawn in accordance with the law and the test was done accordingly. In fact we note that ISI prescribes standards for testing coal for its Ash Contents in IS: 1350. Neither the report of the chemical examiner nor CFRI states that the said method of testing as prescribed in IS: 1350 was adopted by them. On the other hand we have the Load Port certificate, certificating that samples were analysed in accordance with ASTM method. Chemical examiner in his cross-examination has accepted that ASTM method is one of the recognised methods for testing the samples. The cross-examination of the inspector conducted during the course of adjudication also revealed that the sampling was not done in accordance with the ISI standards. 14. The appellants vide their letter dated 18-9-98 submitted that the test reports at the Load Port as also at the Discharge Port has been done by the internationally....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h other. The remark of Dhanbad Laboratory showing that the sample was not representative as per ISI standards, further places the said report under doubt. The infirmities in the two said reports do not prompt us to place reliance upon the same and to hold that they reflect the correct Ash Contents. 17. We would also like to discuss here the Tribunal's judgment in the case of Commissioner of Customs, Ahmedabad v. Tata Chemicals Ltd. reported in 2004 (177) E.L.T. 1038 (Tri.-Mumbai), strongly relied upon by the learned DR. We have gone through the entire judgment very carefully. In Para 8 of the said judgment, it stands observed by the Tribunal that the respondents (as it was Revenue's appeal) failed to produce any other report except the one given by foreign surveyors to disapprove the results communicated by the department. In the present case we find that apart from the Load Port report there is SGS report also in favour of the assessee. Further, in Para 18 it was observed that the method adopted for testing was gross air dried method which was adopted at the Load Port as also at the Port of Discharge and was universally recognised method of testing the Ash Content. In the present....