TaxTMI 
TaxTMI 
2023 (2) TMI 624
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....turing Chlorinated Paraffins and trading of OGL products like Oils, Petro Chemicals etc. 2.1 On 06.09.2021, it imported raw materials for its own consumption as well as for trading business. It placed the order for import of 3000 Metric Tone +/- 5% GTL Light Paraffin in bulk on Abacus Chemie DMCC, Dubai, UAE. Proforma invoice dated 30.08.2021 and sale order confirmation of the selfsame date was received from the said supplier. The letter of credit dated 06.09.2021 was opened in favour of the foreign supplier Abacus Chemie. 2.2 The supply came on 18.09.2021 of 2970 Metric Tone of GTL Light Paraffin against the commercial invoice No.AC/2021-80-293 along with certificate of origin and quality. The goods were shipped against the Bill of Lading No.HC2015A-07 dated 18.09.2021 vide Vessel-MT Hanyu Camellia with port of discharged being Mundra Port, Gujarat. 2.3 It is averred by the petitioner that GTL Light Paraffin was the product of Shell Refinery, Qatar and the same supplied directly from the Shell Refinery, Qatar after loading the same from Soharpur Port, Oman. The Shell Refinery is renowned multinational refinery having global presence according to the petitioner. The Vessel....
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....t goods and the petitioner had taken clearance of 1610.210 MTs of the subject goods w.e.f. 01.10.2021. 2.8 To the grievance of the petitioner without any notice or intimation on 05.10.2021 the cargo was put on a hold by the department. On 06/07.10.2021 Officers from DRI, Regional Unit, Ghandhidham and Officers from Custom (SIIB) Custom House, Mundra visited the liquid terminal of Adani Ports and SEZ Limited and drew samples from the cargo stored in the tank Nos.57, 58 and 59. 2.9 The petitioner followed the matter for clearance of the balance quantity of 1360 Mts of the imported goods. However, after a lapse of more than a month's time, the goods were not cleared nor were any reasons assigned. This non-release on the part of the respondent, according to the petitioner, was after the report of CRCL, Kandla to the effect that goods were other than the Light Oil etc. The petitioner face the hardship and suffered the loss. It made payment of LC amount of USD 21,68,100 on 02.11.2021 and this had also caused immense financial pressure. 2.10 Communication was sent to the respondent No.2 on 15.11.2021 for release of the cargo, where the issues of acute financial hardship and irrep....
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....on 108 of the Customs Act, 1962 for recording of statement had also been issued. 2.15 As averred that the petitioner since was made to run from pillar to post seeking clearance of the subject imported goods. It has chosen to approach this Court by preferring the writ petition being Special Civil Application No.3843 of 2022. This Court vide its order dated 31.03.2022 had directed the department to conduct the retesting of the same goods imported by another importer and loaded from Oman, from CRCL, New Delhi to verify whether the samples are of GTL Light Paraffin or it is Light Diesel Oil. This Court disposed of the matter on 21.04.2022, wherein the report of CRCL, New Delhi was reproduced where it opined that amongst others the sample is Liquid Paraffin, which was in case of some another importer. 2.16 On the strength of the earlier petition by another importer, the request is made to the respondent for the re- testing. The Court directed vide its order dated 19.10.2022 (Coram: Justice N.V. Anjaria and Justice Bhargav D. Karia) the competent authority of the respondent to send the sample of the product in question to CRCL, New Delhi for re-testing along with the letter request....
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....e import specified fuels including High Speed Diesel and Light Diesel Oil confirming two IS standards in any form has been prohibited vide Notification No.36/2015-20 dated 17.01.2017 as amended vide Notification No.38/2015-20 dated 01.10.2020. This policy has been framed in larger public interest and the entitlement to import such fuel products have been reserved for Licensed Enterprises and State Trading Enterprise like IOCL, BPCL, HPCL, etc. The petitioner is not a State Trading Enterprise nor possesses a license to import such fuels and hence, the import of Light Diesel Oil by the petitioner is liable to absolute confiscation. 4.2 The Directorate of Revenue Intelligence had received intelligence that the prohibited goods were received by way of import at Mundra from Middle East by various parties and therefore, investigation was initiated inquiring into such imports on 28.09.2021. While making inquiry of the liquid cargo imported onboard vessel MT Hanyu Camellia stored in the bonded Storage Tanks at Adani Ports and SEZ Terminal, Mundra, it appeared that prohibited goods were mis-declared by various entitles including the petitioner as GTL Light Paraffin. 4.3 In view of the....
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....21. 4.10 The statements have been recorded of the parties, who had purchased the so called GTL Light Paraffin from the petitioner and of their subsequent buyers. One of the purchasers of the said liquid cargo in his statement recorded under Section 108 of the Customs Act has stated they have dealt with the goods having declared prescription like Base Oil, SN 60, Base Oil SN 70, GTL Light paraffin, Paraffin Oil, Base Oil GR1 60 N, etc., these were purchased from various suppliers. One of them also has stated that this product had come to his knowledge since last two years mainly used as a fuel in the vehicles but it is sold in the market for industrial use only. For trading of the product known as GTL Light Paraffin also said that sold the product at Ahmedabad to those persons who are engaging in manufacturing of foods products such as sweets, namkeen etc. These buyers had used the products declared as GTL Light Paraffin for heating the boilers installed in their manufacturing unit to manufacture the food items.Another buyer had stated that they got cleared 1500 MT subject goods under bond transfer from M/s.Shivtekt Industries Pvt. Ltd. and sold the same to the buyer, which inclu....
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....ed in 1W, 2W, 4W, 6W, 8W and 10W with no segregation as to the parcel. NO particular tank was assigned for storing and discharging the said commingled cargo. The Captain of the ship decides which of the tank will be discharged at which port considering the stability of the ship and the consignee or shipper cannot decide from which tank should the cargo be discharged at which port and the cargo was discharged from the vessel MT Hanyu Camellia. It is denied that the liquid cargo delivered at the port of Kandla, Mundra and Hazira were not commingled. The tank 6P was meant to be discharged at Hazira whereas the survey reports cargo in tank 6S, the cargo of M/s. Gujarat Ambuja Exports Ltd., was discharged at Hazira Port which itself shows that the goods imported were part of the commingled import of the subject goods imported by vessel MT Hanyu Camellia and the same was discharged as per the decision of the Captain of the ship. Hence, the stowage plan according to the petitioner, is of no consequence. 5.1 It is submitted that the facts of Special Civil Application No.3843 of 2022 are on the same line and the tanker was loaded with Paraffin from Oman and the goods were declared accord....
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....ct goods and the petitioner and had taken clearance of 1610.210 MTs of the subject goods w.e.f. 01.10.2021. It is only after the DRI came into the picture on 06/07.10.2021 and Officers from Custom (SIIB) Custom House, Mundra visited the liquid terminal of Adani Ports and SEZ Limited and drew samples from the cargo stored in the tank Nos.57, 58 and 59. The same had been referred to the CECL, Vadodara by DRI. 8.2 The samples were described as GTL Light Paraffin. The test report Nos. RCL/DRI/AH/1492,RCL/DRI/AH/1495,RCL/DRI /AH/1496, RCL/DRI/AH/1497, RCL/DRI/AH/1498, RCL/DRI/AH/1499,RCL/DRI/AH/1500,RCL/DRI/AH/ 1501, RCL/DRI/AH/1502, RCL/DRI/AH/1503 and RCL/DRI/AH/1504, all are dated 28.10.2021. The opinion of the Chemical Examiner Gr.II, Central Excise and Customs Laboratory, Vadodara is as follow: "Above analyzed parameters reveal that the sample u/r meet the requirements for "Light Diesel Oil" (LDO) as per IS:15770:2008 and also detailed requirements for "Diesel fuels" grade No.2-DS5000DE as per ASTM D 975-04a respectively." 8.3 The test report of Custom House Laboratory, Kandla with respect to import product declared as GTL Light Paraffin, the DRI on 06.10.2021 addres....
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....s per IS: 15770:2008? (iii) Whether the sample is other than (I) and (ii) above? If so, what is its identification? 8.5 It also reiterated that this was to verify the sample whether is GTL Light Paraffin or it is Light Diesel Oil and the third, whether the sample other than (i) and (ii) if yes, what is the identification? 8.6 On 14.12.2022, the Joint Director, Non- Functional Selection Grade (NFSG) received a letter from Government of India, Central Revenues Control Laboratory, New Delhi addressed to the Additional Director, Directorate of Revenue Intelligence, Gandhidham (Kutch) regarding re-testing on remnant samples of import goods declared as GTL Light Paraffin. According to this report, each of the twelve samples under reference have been registered under the Laboratory on 28.11.2022. Six remnant samples having CLR-85 to 90 have been analyzed and the retest report is given their characteristic and mineral oil content as other details have been produced thus: Retest Report S.No. Characteristics Requirement of Paraffinic Diesel Fuel as per DIN EN 15940:2019-10 CLR-85 TM No. 49/2022 (Marked as T57/S1) CLR-86 T.M. No. 50/2022 (Marked as T58/S1) ....
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..... Each is other than Automotive Diesel Fuel (IS-1460:2017), HFHSD (ISPage 16861:2018), Diesel Fuel (ASTM D975-21) and Light Diesel Oil (IS-15770:2008)." It categorically says that each of the six samples is Liquid Paraffin, each meets the requirement of Paraffinic Diesel Fuel as per the DIN EN 15940:2019. Each is other than Automotive Diesel Fuels (IS- 1460:2017), HFHSD (IS-16861:2018), Diesel Fuel (ASTM D975-21) and Light Diesel Oil (IS-15770:2008). 8.7 The other reports which is from CLR-91 to CLR 96 are as follow: S.No. Characteristics Requirement of Paraffinic Diesel Fuel as per DIN EN 15940:2019-10 CLR-91 TM No. 55/2022 (Marked as TS/21) CLR-92 T.M. No. 56/2022 (Marked as TS/26) CLR-93 T.M. No. 57/2022 (Marked as TS/31) CLR-94 T.M. No. 58/2022 (Marked as TS/36) CLR-95 T.M. No. 59/2022 (Marked as TS/41) CLR-96 T.M. No. 60/2022 (Marked as TS/46) 1 Acidity, Inorganic - NIL NIL NIL NIL NIL NIL 2 Ash Content 0.01 NIL NIL NIL NIL NIL NIL 3 Total Aromatic Content % (M/M), MAX 1.1 Not detected Not detected Not detected Not d....
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....are said to be the GTL Light Paraffin with a clear opinion that it is other than the Light Diesel Oil and other than Automotive Diesel Fuel or Diesel Fuel. The inquiry of the DRI and the serious concern on the part of the DRI of use of the imported material as a Automotive Diesel Fuel or Diesel Fuel or Light Diesel Oil had resulted into the seizure of the goods and also continuing with this inquiry. 10. We notice that the import has been made in the month of September, 2022. There were two test reports, one from CRCL, Kandla is in favour of the petitioner, however, the Kandla Laboratory having expressed its limitation on opining on all eleven parameters, the matter had been referred to the CECL, Vadodara which opined other than what the CRCL, Kandla had and hence, the directions were issued by this Court for the report to be obtained from the Central Revenue Control Laboratory, New Delhi, it is being a appellate laboratory in all respect, its opinion shall need to weigh with the Court. We also notice that in case of M/s. Gujarat Ambuja Exports, whose cargo is said to have been commingled, release has already been given. The serious dispute had been raised with regard to the stor....