TaxTMI 
TaxTMI 
2022 (9) TMI 1133
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....reviated, "CRCL") of Kolkata and re-test report dated 04.01.2022 of CRCL, New Delhi and writ of mandamus to undertake final assessment afresh by taking into consideration subsequent codified re-test report dated 22.08.2022 submitted by CRCL, Mumbai. 2. Statement of facts outlined by the petitioner-company in the writ petition leads to say that supplies of iron ore fines of 56.07% Fe content with moisture content of 9.65%, duly certified by Mitra S.K. Private Limited of Bhubaneswar, were made to Synergy Resources HK Limited of Hong Kong City by way of export. Upon submission of shipping bill on 16.12.2020, classifying the subject goods under Customs Tariff Head 26011142, provisional assessment under Section 18(1) of the Customs Act was framed on 22.12.2020 on the basis of said certification by applying NIL rate of duty. 2.1. The Deputy Commissioner, Paradeep Customs Division passed the final Assessment Order on 28.06.2022 under Section 18(2) of the Customs Act based on test report dated 16.12.2020 submitted by the CRCL of Kolkata and re-test report dated 04.01.2022 of CRCL, New Delhi. In the said Assessment Order it has been observed as follows: "4.6. From the test re....
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....missioners of Customs and Central Excise. Sir/Madam, Sub: Detailed guidelines for re-testing of samples- reg. World Trade Organization (WTO) negotiated Trade Facilitation Agreement (TFA), which aims at simplifying the trade processes and bringing down barriers to trade has come into force w.e.f 22^nd February, 2017. India is a signatory to this agreement. 2) India has placed a number of trade related measures negotiated under the TFA in Category A. Article 5.3.1 envisages granting an opportunity for a second test in case the first test result of a sample taken upon arrival of goods declared for importation shows an adverse finding, Further Article 5.3.3 makes it obligatory to consider the result of the second test, if any, for the release and clearance of goods, and, if appropriate, may accept the results of such test. The aforementioned Articles have been placed in category A. In order to have uniformity in approach among the field formations with regard to re-testing of samples, the following procedure is prescribed: a. Customs officers may draw the samples from import consignments for testing in case of consignments wherever needed. The res....
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....tion between the first test and retest results. g. The facility of re-testing, is a trade facilitation measure, which should generally not be denied in the ordinary course. However, there might arise circumstances where the customs officer is constrained to deny the re-testing facility. Board expects that such denial would be occasional and on reasonable grounds to he recorded in writing. h. Where the re-testing procedure is done at the instance of the department instead of the importer, the above procedure shall be followed mutatis mutandis. 3) Difficulties, if any, in implementation of this circular, should be brought to the notice of the Board. 4) Hindi version of the circular will follow. Yours faithfully, (Zubair Riaz) Director (Customs) 3.2. Though CRCL, New Delhi pursuant to re-testing request submitted report, the same being not on independent analysis rather based on the report of CRCL, Kolkata, the petitioner approached the Chief Commissioner of Customs for codified retest of remnant samples pertaining to shipping bill No.7251149 and submitted representations dated 15.06.2022 and 16.06.2022 for doing the needful. Nevertheless, ....
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....etition being filed, the Senior Counsel for the petitioner submitted that there is no sanctity attached to the retest report submitted by CRCL, New Delhi as the same followed the test report of CRCL, Kolkata and subsequent re-test report of CRCL, Mumbai submitted by codified re-test method falsifies the claim of the Department. The basic foundation based on which the final Assessment Order dated 28/29.06.2022 has been passed by the Deputy Commissioner, Paradeep Customs Division being removed, it is, thus, urged by Mr. Jagabandhu Sahoo, Senior Advocate that the impugned demand of Rs.39,91,58,867/- raised under Section 18(2) cannot be sustained. 3.6. Placing reliance on the Judgment rendered by the Hon'ble Supreme Court of India in the case of Reliance Cellulose Products Ltd. Vrs. Collector Of Central Excise, 1997 Supp(1) SCR 485 = 1997 (93) ELT 646 (SC), the learned Senior Counsel for the petitioner argued that he could demonstrate that the reports of CRCL, Kolkata and New Delhi could not be held to be just and correct in view of report of CRCL, Mumbai. Said report of CRCL, Mumbai having come to his possession after final assessment order being passed, the petitioner is entitled ....
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....equest the Assistant Collector that the samples be retested. That procedure has been followed. Therefore, there is no procedural infirmity in the order of the Assistant Collector nor has it been established that the Assistant Collector was wrong in relying on the report of Chemical Examiner and Chief Chemist in preference to the opinion obtained by RCPL from some private individuals." 5.1. Reference may be had to Ponds India Ltd. Vrs. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369 wherein it has been laid down as follows: "72. Furthermore, an expert in the field has also given his opinion in favour of the appellant. This Court in Quinn India Ltd. Vrs. CCE classified a product relying, inter alia, on the report of the clerical (sic chemical) examiner as under: (SCC p. 563, para 7) "7. The Tribunal has completely ignored the report of the Chemical Examiner dated 6-10-1981 and the final opinion of the Chief Chemist dated 2-4-1992 coupled with the classification issued by the Department regarding use of wetting agents in the textile industries falling under Sub-Heading 3402.90. Test reports of the Chemical Examiner and Chief Chemist of the Revenue unless demo....
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....ities under the statute. 5.4. This Court may at this juncture notice the interpretation put forth by the Hon'ble Supreme Court of India in the case of Dilip Kumar and Company & Others, (2018) 9 SCC 1=2018 (361) ELT 577 (SC). In the said case it has been observed as follows: "52. To sum up, we answer the reference holding as under- 1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. 3) The ratio in Sun Export case (supra)[Sun Export Corporation, Bombay Vrs. Collector of Customs, Bombay, (1977) 6 SCC 564] is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled." 5.5. Thus the settled legal position is that the exemption notification must, in all cases be strictly construed and any benefit of doubt must be give....