2007 (8) TMI 175

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....rt Health Officer during ullage survey drew samples for analysis on the same day. (b)  Sample was sent by the Customs officer to Chemical Examiner based at Kandla Customs House and the test report dated 29-2-2000 indicated the free fatty acid (FFA) content as 0.1% was received. (c)  The sample was sent by the Port Health Officer to Food and Drugs Laboratory, Vadodara and the report dated 10-2-2000 indicated the acid limit as is 0.18% and with opinion that the sample confirms to the stands and provisions laid down under the Prevention of Food Adulteration Act, Rules 1955. (d) Bills of entries No. 441 to 446 all dated 10-3-2000 were filed for clearance of total quantity of 6038.167 MT claiming the benefit of concessional ra....

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.... content is less than 0.5%. (ii) The request of the appellant for re testing at a private laboratory was not acceded to by the department vide their letter dated 10-10-2000. However, the remnant sample was sent for further testing to the Director of Central Revenue Control Laboratory, New Delhi and he vide his letter dated 18-4-2001 has confirmed that the FFA calculated as oleic acid is 0.1% by weight. (iii)When they imported the consignment in February, 2000, there was no requirement that the FFA content should be at least 0.5%. This requirement in the Notification is contrary to the stipulation of FFA content of less than 0.5% in respect of cotton seed oil as prescribed in the Prevention of Food Adulteration Rules, 1955. The notific....

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....000 in the test report dated 29-2-2000 is clearly a cover up operation to demand duty invoking extended period. (vii) Section 144 of the Customs Act specifically provides for drawal of sample in the presence of the owner and in their case the owner was not present at the time of drawing the sample. They were aware of the drawal of sample only when show cause notice was received by them. Further, there is nothing on record to show that the sample was drawn in the presence of the owner. Further, the forwarding letter of the test memo to the chemical examiner also does not indicate the presence of owner at the time of drawing sample. 5.The ld. SDR submits that the appellant has given PD bond pending outcome of the test results and theref....

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....sentative while sample is drawn. If the import is by a Public Ltd. Company, the owners, namely the share holders cannot be present personally. The company has to be necessarily represented by  an authorized person. In this case, the presence of the importer's authorized representative has been recorded by the Original Authority in his order-in-original and this fact has not been disputed. Therefore, the contention that sample has been drawn in violation of provisions of Section 144 is not acceptable. 6.3It is seen that the appellant has claimed the benefit of Notification No. 16/2000 and therefore by implication he claimed the concession of FFA at a minimum of 0.5%. The test results by the Chemical Examiner, Kandla and the Food and ....