TaxTMI 
TaxTMI 
2019 (11) TMI 1288
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....riff heading 271011910 (for coking coal having less than 12% Ash content) claiming benefit of Nil rate of Basic Customs Duty under Notification No. 21/2002-Cus dated 01.03.2002. Notification No. 21/2002 (Sr. No. 68) dated 01.03.2002 as amended vide Notification No.44/2004-Cus dated 28.02.2004-Cus dated 28.02.2004, prescribed Nil rate of duty for "Coking Coal" of ash content below 12% of CTH 2701. The said bills of entry were provisionally assessed on execution of bond for want of original documents, test results and finalization of the issue of Coal Cess. The respondent paid Coal Cess at the rate of 20% of Rs. 10/- PMT along with Education Cess and Secondary & Higher Education Cess on the provisionally assessed value. Samples of the importe....
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....rieved by these impugned orders, respondent again filed appeal before the Commissioner (Appeals) who set aside both the orders-in-original and allow the appeals filed by the Respondent. Being aggrieved by the orders-in-appeal no. 38-39/-COMMR(A)/JMN/2011 dated 28/06/2011, Revenue filed the present the appeals. 2. Shri Rakesh Bhashkar, Learned Superintendent (Authorised Representative) appearing on behalf of the Revenue reiterates the grounds of the appeals. He further submits that the learned Commissioner (Appeals) has not considered the fact that in the present consignment in dispute, the test report and technical opinion given by the Chemical examiner goes against the Respondent and, therefore, they are not eligible for exemption under....
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....arned Counsel appearing on behalf of the Respondent submits that in the first round of remand order by the Commissioner's (Appeals) categorical finding was given for retesting of the goods and the first test report was completely set aside. Since no retest was done, the Adjudicating Authority was not correct in relying on the earlier test report. He further submits that subsequent opinion given by the Chemical Examiner with reference to the earlier test report indicates that the test results of sample under reference shows that the CSN is less than 3. Hence, these are 'other than coal'. He submits that it is nowhere mentioned in the test report that the CSN is less than 3 and without carrying fresh retest, the statement that the CSN is less....
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.... Chemical Examiner, Customs Laboratory, Kandla instead of carrying out tests on the given five parameters of the test memo, had conducted tests on only two of them which were not conclusive to hld that the imported Coal was 'other than coking coal' chargeable to duty. Having regard to the facts of the present case and the kind of variations in tests results of samples, the appellant's request for re-testing of the samples sounds genuine and well reasoned particularly in the light of their contention that another consignment from the same lot from the same vessel 'MV Pilion' imported vide B/E No. 181166 dt. 27.02.2007 by M/s Austral Coke & Projects Ltd. and discharged at Kandfla was cleared by CH Kandla as "Australian Coking Coal' without ra....
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....p for decision in terms of this remand order. 5.7 Consequently, both the impugned final assessment orders are set aside and the fe1s filed by the appellant are allowed by way of remand to the original adjudicating authority in the above terms." From the reading of the above finding of the earlier remand order of the Commissioner (Appeal). It is very clear that the Learned Commissioner (Appeals) has clearly held that the parameters in the test report are not conclusive and directed the Adjudicating Authority to get the retest done. In this position, the earlier report become nonest and the same cannot be used again for readjudication of the case. The only option left with the Adjudicating Authority was to get the retest done and ....