2019 (4) TMI 1706

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.... Fe content at 60% and classifying the goods under tariff item (HS Code) 2601 1140 in their shipping Bill No. 7100776, dated 30.04.2008. At the time of filing the shipping bill, the rate of duty was Rs. 300/- per MT and they paid the duty accordingly. The final Let Export order was issued on 07.05.2007. On 03.05.2007, notification No. 62/2007-Cus was issued exempting iron ore fines of Fe content 62% and below in excess of Rs. 50/- per tonne. In other words, if the appellant is eligible for the benefit of this exemption, they have to pay the customs duty of only Rs. 50/- per MT instead of Rs. 300/- per MT. The goods in question were tested by the Chemical Examiner who reported that iron content as 62.31% and therefore it was held that appell....

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..... The results of the analysis by M/s SGS India can only serve to cast a shadow on the findings of the chemical examiner inasmuch as on the date of filing of the shipping bill, the appellants were not entitled to any benefit based on iron content, thereby qualifying the result of SGA filed by the appellant as bonafide, though not obtained by the prescribed procedure. Even this alone, I feel, will not be capable of swinging the issue in favor of the appellants. It is the denial of opportunity for the re-test, requested by the appellants, on the ground that no remnant sample is available for such re-test, is what makes the ratio of the decision of the Hon'ble CESTAT in the case of M/s Bagadiya Brothers Pvt. Ltd. vs. CC, Visakhapatnam-I as repo....

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....aminer cannot be lightly brushed aside on the basis of the report of some private persons obtained by the assessee as has been held by Hon'ble Apex Court in the case of Reliance Cellulose Products Limited [1997(93)E.L.T. 646 (S.C.)]. This judgment of Hon'ble Apex Court was followed by the Tribunal in the case of Bandana Overseas [2009(235)E.L.T. 165 (Tri.-Kolkata) and the Hon'ble High Court of Bombay in the case of Godrej Industries Limited [2003(161) E.L.T. 68 (Bom.)]. She further submits that exemption in this case was by way of an exemption notification which must be strictly construed against the person claiming the benefit of this exemption. In this factual matrix, it is her assertion that there are only two reports. Without the possib....

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....nd strong force in the argument of Ld. Principal Commissioner (AR) that the Chemical Examiner report must be excluded in the absence of cogent and strong reason to reject the same and the report by a private person cannot take away the test report by the Chemical Examiner. 5. In this factual matrix, we find that no definite conclusion can be arrived at regarding the Fe content of the iron ore fines which were exported. There is no evidence to show that either of the two reports is wrong. There is also no third report to substantiate either of the two reports. Re-testing is impossible because there is no sample left. The judgment of Hon'ble Apex Court gives precedence to the report of the Chemical Examiner over that of any private party. ....