2022 (8) TMI 557

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....oods were placed under seizure. Thereafter, the matter has been decided vide the order in original whereby the Adjudicating Authority held that 117.86 MT imported by the appellant is Superior Kerosene Oil and not Low Aromatic White Spirit. Accordingly the Classification of Goods claimed by the appellant under Custom Tariff Heading No. 27101990 has been rejected and ordered it to be classified under Custom Tariff Heading No. 27101910 of the first schedule of Custom Tariff Act, 1975. He ordered for confiscation of 117.86 MT. of Superior Kerosene Oil value at Rs 68,39,640 imported by the appellant under section 111(d),111(m) and 111(o) of the Customs Act, 1962. The penalty of Rs. 6783960 was imposed upon the appellant under section 112 (a) (1) of Customs Act, 1962. Being aggrieved by this adjudication order the appellant filed an appeal before the Commissioner (Appeal) who vide the impugned order in appeal no. JMN-COSTM-000-APP-337-19-20 dated 20.03.2020 rejected the appeal filed by the appellant. Therefore, the present appeal. 2. Shri Vikas Mehta, Learned Consultant appearing on behalf of the Appellant submits that the lower authorities accepted the test report of the goods import....

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.... that are required to test as per requirement of IS prescribed in the Supplymentary note. 2.1 He submits that as regard the issue that whether all the test prescribed under IS are not carried out by department in order to decide the classification, Hon'ble High court of Gujarat, in the judgment dated 20.01.2022 in the case of Rajkamal Industries applied the principles of "reasonable doubt" and "preponderance of probability" in the case where 14 out of 21 tests were carried out . However, in the respectful submission of appellant, the same when applied to the case in hand would make it absolutely clear that only 01 parameter, i.e. Distillation (Flash Point being the second and common between solvent and kerosene) cannot give rise to any reasonable doubt and preponderance of probability that goods under consideration are Superior Kerosene Oil. He submits that as regard the specifications for the Petroleum Hydrocarbon solvents under IS : 1745- 1978 submitted by the Learned AR that there are 07 grades of solvent and items having final boiling point of above 205 degree centigrade is also considered as solvent under column 9 only. It will per se not to make it Superior Kerosene Oil. H....

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....eal filed by the appellant is not sustainable. Hence, same is liable to be dismissed. 4. We have carefully considered the submission made by both sides and perused the records. We find that the goods imported by the appellant have been absolutely confiscated on the ground that the same is Superior Kerosene Oil and not Low Aromatic White Spirit as declared by the appellant. The Superior Kerosene Oil is a restricted item therefore the same was absolute confiscated. In this regard the department has conducted the chemical test of the product for which the representative sample was drawn and sent to the chemical examiner, Custom House Laboratory, Kandla. The test memo whereby the sample was sent is scanned below:- From the above memo it can be seen that the query for testing of the product was made as " Whether sample confirm the description of goods as above or otherwise?" from this test query the department wanted to confirm whether the product imported by the appellant is Low Aromatic White Spirit or otherwise. However against the said test memo the following report was given by the chemical examiner. The chemical examiner instead of answering the query that whether sample ....

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....is used as illuminant and fuel. To arrive at the conclusion that the goods are kerosene which is used for illuminant and fuel the above parameters have to be tested. We find that the decision of Mumbai Tribunal dated 09.05.2022 in the case of Shri. Jethanand Rohra and M/s. Jaymco Polymers Pvt. Ltd (Supra) supports the case of the appellant wherein on the issue of classification of imported goods as kerosene it was held as under: "18. Although the adjudicating authority have referred to characteristics- CHAR value, bloom on glass chimney, but have failed to show how the said characteristics, which governed the parameters, - burning quality has been satisfied. Further, Revenue have failed to appreciate that these characteristics determine not the quality but the burning quality of kerosene which is an important parameter for determination of kerosene. The test reports being the only evidence relied upon by Revenue in the instant case to allege misdeclaration/ mis-classification, are wholly inconclusive and unreliable. It is further urged that the court below have erred in holding that the two characteristics viz. CHAR value and bloom on glass chimney are secondary in nature,....

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....ustoms Department for more than two years, for no fault of the appellant, grant of waiver of detention and demurrage charges is appropriate and direct that the proper certificate shall be issued by the concerned authority. We also direct that the goods in dispute be delivered to the appellants forthwith, within a period of two weeks from the date of receipt or service of this order." 4.3 We are of the view that the department must give effect of the above order for wavier of detention and demurrage charges. As per our above discussion and finding we are of the view that department could not establish that the goods in question is SKO therefore, the classification claimed by the appellant needs to be maintained. 5. Accordingly, impugned order is set aside and giving effect of this order the department shall vacate the absolute confiscation and penalty imposed is set aside. Appeal is allowed with the consequential relief in accordance with law. (Pronounced in the open court on 10.08.2022 ) ============= Document 1 आयुक्त कार्यालय सीमा शुल्क 'सà¥....

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....¥‡ नाम व हस्ताक्षर 12 2510/2018 Document 2 1.9 OCT 2018 འདི སྒྱུ, ཁོ, མན་འ་ས 2ཤ6༠ Repost- It is BIR, M 7736631/22-8-18 The sample is in the form of colonslus liquid composed of mixture of minusal hydrocarbons having following constants ZBP = 145°C Density at 15°c = Distill at 210 degree flash poent Smok point f.BP = 252°C 0.7859 gm/me = 72% 42°C = 23mm The above reported parameter meets the requisment of kerosence as per IS 1459-2016. Sealed Semant sample returned herewith. Sayle by 1/15/10/18 P.1 Chine 25.10.18 CS Scanned with 16/10/18 V. P. BAHUGUNA वी.पी. बहुगुणा CHEMICAL EXAMINER GRADE-II रसायन परीक्षक ग्रेड-]] CUSTOM HOUSE LABORATORY, KANDLA (GUJARAT) कस्टम हाउस लौबोà¤....