TaxTMI 
TaxTMI 
2017 (4) TMI 486
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....ash content in the said coal was less than 12%. Samples were drawn and tested. The test report indicated that the sample contained 13.1% ash content and therefore the benefit of Notification was denied and duty was demanded from the appellant alongwith interest. The said demand of duty was confirmed by lower authorities. Aggrieved by the said order, the appellant before Tribunal. 2. Ld. Counsel for the appellant argue that for the purpose of the testing coal, the samples are required to be taken as prescribed under IS 436. Ld. Counsel pointed out that the said IS 436, interalia, provides as follows:- "5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING 5.1 Sub-lots - For the purpose of sampling, the entire quantity of co....
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....e drawn during the loading and unloading of the ship. He pointed out that the minimum weight of the gross sample should be 75 Kg. 2.1 Ld. Counsel for the appellant relied on the decision of Hon'ble Supreme Court in the case of Tata Chemicals Ltd. vs. Commissioner of Customs (Preventive), Jamnagar is reported in 2015 (320) ELT 45 (S.C.) has observed as follows:- "16. The admitted position on record is that the samples drawn were not drawn in accordance with law and were drawn with no regard whatsoever to IS 436. That IS 436 would apply to the facts of the present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of Ind....
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....ver stated that CASCO's certificate of quality ought to be rejected or is defective in any manner. This being the case, it is clear that the entire chemical analysis of the imported goods done by the Department was ultra vires Section 18 (b) of the Customs Act. He argued that since they have given sufficient document to show that the ash content less than 12% there was no need for the Revenue to the same tested. 2.2 Ld. Counsel further argued that the coal imported in the same ship, from the same port, but imported by different persons was found to contain ash content of 11%. However, the samples of coal taken by in respect of their imports were tested to have 13% ash content. He argued that it was becomes of sampling error. He to....
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.... Ans: I.S. 1350 He further took us through the cross examination of the Inspector who had taken the samples. He pointed out that while taking the samples the procedure prescribe IS 436 has not been followed. The said cross examination is given below:- The following were the questions asked by S. Suriyanarayanan and answered by Shri R. Y. Jadeja, Inspector Question No. 1: The drawn samples were packed in which type of contain Ans: Generally, drawn samples were packed in Plastic Bags duly wrapped in a outer cloth bag. In this case, I am not able to recollect about the outer wrapping due to lapse of time. Question No. 2: How many samples of which size were drawn against the Bill of entry ....
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.... AR relied upon the impugned order. He further pointed out that the appellant had filed bill of entry claiming exemption under the said Notification after 30 days of unloading from the ship. He pointed that the Revenue could have taken samples only after the appellant claimed the benefit of Notification No.21/2002-Cus. He argued that the representative of the appellant was present at the time in the samples for taken. He further argued that if the appellant was not satisfied with the manner of sampling they could have asked for the same at the relevant time. They also had option to get it retested but they did not avail of that facility. 3.1 Moreover, he argued that the requirement of taking the samples during the unloading or during the....
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....0 MT and in terms of IS 436 in such cases upto 6 lots of samples need to be drawn. Thus it is apparent that the provision of IS 436 were followed to the extent possible, given the fact that the importer had declared the intention to avail exemption 30 days after unloading. 5. The second issue raised by the appellant is that the goods imported on the same ship by different importer, from the same country of origin, could not have same different ash content. It is observed that ship is a very big vehicle and it is possible the while loading a ship coal from different sources has been loaded in different parts of the ship. Coal is a solid material and it does not mix during transport. One kind of coal can be loaded in one corner or hold of ....