TaxTMI 
TaxTMI 
2009 (7) TMI 705
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....ort was allowed provisionally on accepting the Bond No. 48/04.03.2005 for an amount of Rs. 8,57,00,000/-pending testing the actual Fe content. The sample was then sent for chemical analysis to the Chemical Examiner, Customs House, Cochin under Test Memo No. 61/18-3-2005. The Chemical Examiner, Central Revenue Laboratory, Customs House, Cochin, after analysis of the sample covered under Test Memo 61/18-3-2005 reported Vide F. No. S-10/11/2005-06 Lab. Cus. L-29 (Mg) dated 8-6-2005 reported that the Fe content of the samples was 64.6%. As the Exporters had declared the Fe content of the iron ore exported as 62%, an explanation was called for vide letter C. No. S. 02/14/2004 Exports dated 1-8-2005 from the Exporter. The exporter in their letter No. MEL:CUS:08:05 dated 26-8-2005 denied the allegation made in the letter that they exported iron ore with Fe content of 64.6% and stated that they are under presumption that the sampling had not been conducted in accordance with IS 1405 : 1982 specification, which is the basis for sampling of minerals and hence the result obtained was misleading; that M/s. Mitra S.K. who are one of the accredited agencies by National Accredition Board for Tes....
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....es the Fe content 62.03% and with the amounts received by them is as per the entire contents indicated in the loading port licence is as per the discharge port analysis. The Adjudicating Authority after granting an opportunity of personal hearing, did not accept the contentions of the appellant and held that the goods which were exported are liable for confiscation and coming to such a conclusion he confiscated the goods, directed the appellant to pay fine of Rs. 8,57,000/- (Rupees eight lakh fifty seven thousand only) in lieu of confiscation, and also imposed a penalty of Rs. 1,00,000/- (Rupees one lakh only). Aggrieved by such an order, the appellants are before us. 5. Learned Counsel appearing on behalf of the appellant would draw our attention to the various test reports. He would submit that the Certificate of Analysis given by Mitra S.K. Pvt. Ltd. indicates the entire contents as 62.03% and the inspection done at the indicates 62.37 as Fe content. He would draw our attention to the test report as given by the Deputy Chief Chemist and submit that the entire content which has been arrived by the Deputy Chemist is 64.6% is on a moisture free basis. He would submit that the ship....
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....fication of Export and Import, can to be exported freely. On perusal of the said Export-Import policy, we find, that Iron Ore Fines having Fe content up to 64% are permitted to be exported freely, whereas Export of Iron Ore Fines having Fe content above 64% is permitted only through MMTC Limited or under a license issued by DGFT in this regard. 8. We find that the consignment was exported by the appellant on 4-3-2005. Samples were drawn by the authorities on 4-3-2005. The samples were sent to Deputy Chief Chemist for analysis. We find from the analysis report of the Chief Chemist that the analysis was done by him and report was submitted after almost three months of the export. The said report is reproduced as under : 8.1 It can be seen from the above reproduced report of the Deputy Chief Chemist that the Fe content of the sample was arrived at by the Deputy Chief Chemist was on moisture free basis. We find strong force in the contentions, of the learned Counsel, that this is not accepted by the High Court of Bombay in the case of Union of India and others v. Gangadhar Narsingdas Agrawal and another (supra). We may reproduce the said ratio : "Before going into the contentions of....
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.... the petitioners should be deprived of their just claim on that footing which is totally unwarranted by law. The submission of Mr. Rege must, therefore, fail." 9. We also find that revenue aggrieved by such an order and they took this matter in a Civil Appeal before the Hon'ble Supreme Court and the Apex Court [1997 (89) E.L.T. 19 (S.C.)] have upheld the decision of the Hon'ble High Court of Bombay. The ratio of the said decision is that whenever any sample has to be tested, it has to be tested in the condition in which goods were exported. If it be so, we find that the Deputy Chief Chemist report as reproduced herein above cannot be relied upon by the Revenue. 10. We find that this Bench in the case of Taurion Iron & Steel Company Pvt. Ltd. (supra) had an occasion to consider an identical issue. We find that the paragraph 6 of the said order is very relevant for the purpose of the case before us, hence we reproduce the same. "We have gone through the records of the case carefully. The appellants have stated that the sample was not taken in accordance with the Public Notice. On the other hand, the Revenue has contended that they would not be obliged to go by the test report subm....
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....nd other impurities is also given. Particularly, the moisture content is given even in the certificate given at China, destination Port. The proportion of other impurities like Aluminium, Silica, Aluminium oxide. Phosphorous, Moisture is given, whereas when one sees the reports of the Chemical Examiner, he had given only the percentage of iron and the other percentage is not known. It is not known how the percentage was calculated as to whether it was calculated after the moisture was removed or not or whether moisture was taken into account while calculating the percentage of iron. In any case, when a reputed company which has also been recognized by the Ministry of Commerce and Industries has given the test report and when that test report is in variance with the report of Chemical Examiner, the request of the appellant for re-test ought to have been considered favourably. This has not been done. This is utterly a denial of the Principles of 'Natural Justice.' In any case, we do not find any strong reason for rejecting the test report produced by the appellant from two sources, one from reputed testing organization and the other from the destination Port. The evidence also has be....