TaxTMI 
TaxTMI 
2015 (9) TMI 713
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....12 Commissioner of Customs (Appeals), Mumbai-I 2. The issue involved in the present appeals is whether the appellants are eligible for benefit of Exemption Notification No. 21/2002-Cus dated 1.3.2002 as amended by Notification No. 120/03-Cus dated 1.8.2003 in respect of Crude Palm Oil (CPO for short) imported by it. The appellant company is inter alia engaged in the business of manufacture of refined /hydrogenated vegetable oils at its factory situated at Village Bamne, District Thane. One of the inputs required for the manufacture of refined /hydrogenated vegetable oils is Crude Palm Oil, classifiable under Chapter Heading 15111000 of the Schedule to the Customs Tariff Act, which the appellant imports. Sometime in May, 2004, consignments of CPO was imported by the appellant vide various Bills of Entry for clearance of the said goods, under claim for exemption in terms of Entry No. 34 in the Table annexed to Notification No. 21/2002 as amended by Notification No. 120/2003. The said entry 34 in the exemption notification is reproduced hereunder for ready reference: - Chapter Description of goods Sta. Rate Addl. Duty rate Cond. N....
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....rged similar grounds including that the carotenoid content in CPO dropped with passage of time and therefore it was extremely important to note the date of drawl of samples and date of test as well as the method of drawl of sample and storage of the sample. However, the Commissioner (Appeals) rejected the appeals of the appellant in the second round of litigation giving rise to the present appeals. 3. The learned Counsel for the appellant, among others, urged that the Commissioner (Appeals) has erred in holding that the purpose for having set the standard of 500 mg/kg limit for carotenoid in the said Notification is so that the consumers are able to enjoy oil with a higher carotenoid content. He further urged that the Commissioner (Appeals) has failed to appreciate that upon clearance of the CPO from the port, there is no law to say that the same must be made available to the ultimate consumer within a time frame, when the oil still retains its high carotenoid content. Thus, it could never have been the intent of the Government to determine carotenoid content in the wake of its volatile nature. He further urged that the Commissioner (Appeals) has failed to go by the evidence on ....
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....uchi Soya case that scientific findings given by reputed research institute cannot be ignored. The Commissioner (Appeals) is in error for ignoring the binding precedent, thereby vitiating the impugned order. 3.2 It was further urged that the benefit of exemption notification cannot be denied as relevant Entry 34 in the original Notification dated 1.3.2002 was substituted by subsequent Notification No. 7/2005 dated 4.2.2005, whereby minimum requirement of carotene value was reduced to 250 mg/kg instead of 500 mg/kg. On account of such substitution, the condition regarding carotene value would relate back to the date of parent/main notification i.e. Notification No. 21/2002 dated 1.3.2002. As the requirement was modified by way of substitution and/or clarification, under the rules of interpretation, it always relates back to the date of introduction of condition as to the minimum carotene content. In any view of the matter, even if the report of the Dy. Chief Chemist is taken correct for the argument sake, then also the result has to meet requirement specified for the reason that according to the Dy. Chief Chemist, none of the sample tested above was less than 250 mg/kg. It is fur....
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....Bond and Tintometer instead of Spectro Photometer as required under BS: 684. 3.6 The contention is further raised that the proviso of Section 164 of the Customs Act which deals with power of drawing samples, which empowers the proper officer while the goods are present in the customs area, to take sample of the said goods in presence of the owner for examination and testing, or for obtaining the report or for any other purpose under the Act. Thus, the proper officer was under statutory obligation to draw the sample correctly as required by the relevant standards, prescribed for the goods in question. The contention of the Revenue that no objection was raised by the appellant representative at the time of drawing the samples, does not support the case of the Revenue as it is the obligation of the proper officer to draw the sample in accordance with the prescribed standard. Further, no objection raised by the owner or the representative at the time of drawing of sample, does not waive the requirement of prescribed standard for drawing of the sample and its storage. &nbs....
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.... oil as illustrated in BS:864, para 5. 3.10 The reference is drawn to show, in British Standard in the Codex, as per Circular No. 85/03 dated 24.9.2003 issued by the CBE&C, the method of testing carried out is provided under Codex standard for named vegetable oils CODEX STAN 210-1999. The Codex in para 5.1 refer to British Standard 684, which in turn in para 5.1 provides for apparatus of testing shall be the spectrophotometer. 3.11 Therefore, the learned Counsel urges that this Tribunal be pleased to reject the test report of the laboratory of the Customs House, Mumbai relying on which, the lower authorities have drawn erroneous conclusion and further urges that this Tribunal may be pleased to hold that the substitution in the original notification in the year 2005 substitutes the condition with retrospective effect from the date of the original notification and accordingly, the requirement of minimum carotene content value is reduced from 500mg/kg to 250 mg/kg and accordingly, the appellant fulfilled the condition as laid down in the exemption notification and it may be further held that the appellant is entitled to the benefit of the exemption notification as amended. 4.....
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.... the import consignments in the question were imported prior to the substitution made on 4.2.2005, vide Notification No. 7/2005, the provisions are applicable prior to 4.2.2005 will be applicable and the substitution will not have the retrospective effect. Further, as the appellants representative, who was present at the time of drawing the sample did not object, the appellant can later on not be permitted to raise objection of drawing samples or its storage in spite of the fact that the same does not confirm to IS standards. The burden lies on the importer to show why the carotene value was found reduced to 350 mg/kg in the testing. 4.3 The learned AR further states that the appellant have failed to discharge onus to show that the goods are covered under the Exemption Notification. Further, where more than one interpretation is possible, the interpretation will be accepted which is suitable to the Revenue. Reliance is placed on Tata Chemical in support of his contentions that the test reports are valid. 5. Having considered the rival contentions and on perusal of the records, we find that the sole ground for denying the exemption is the test report of the Dy. Chief Chemist. ....