TaxTMI 
TaxTMI 
2009 (1) TMI 271
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....from the reputed organization. In terms of the test report, the iron content was less than 62%. Hence the assessment was done provisionally pending test report of the Chemical Examiner. Later, the samples were taken at the time of export and samples were analysed and it was found that the Chemical Examiner's test report indicated that the iron content was more than 62%. In view of this, the differential duty of Rs. 1,88,03,250/- was demanded. The appellants were aggrieved over the order of the Original Authority. Therefore, they appealed to the Commissioner (Appeals). The Commissioner (Appeals) after considering the submission came to the conclusion that the appellants do not have a strong case on merits and upheld the order of the Original authority. The appellants are highly aggrieved over the impugned order, they have come before this Tribunal for relief. 3. The learned Advocate made the following submissions :- (i) She stated that the Commissioner (Appeals) had passed a non-speaking order without giving any independent finding. He merely upheld the order of the lower adjudicating authority without giving any independent finding on any of the issues raised by the appellant....
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....ch as M/s. Mitra S.K. Pvt. Ltd. has been recognized by a Notification dated 4-5-2005 of the Ministry of Commerce and Industries as an agency for inspection of minerals, namely Iron ore and Manganese ore. Not a single point of infirmity in the test report of this laboratory has been pointed out by the Original authority. (v) The sampling and testing at the destination Port of China was done according to the International Standards, namely, ISO 3082. No point of infirmity in this report also has been pointed out by the Original authority or the Appellate authority. (vi) A mere look at the report of the Customs laboratory shows that it is a cursory report and no details of moisture content and other impurities like silica and sulphur content of the cargo has been pointed out in the said report as has been clearly mentioned in the other two reports. It may be stated that the presence of the said impurities has a significance to determine the content of Iron. In this connection, the learned Advocate invited our attention to the following decisions :- (a) Union of India v. Gangadhar Nursingdas Aggarwal [1997 (89) E.L.T. 19 (S.C.)] wherein it was held that the percentage of iron ....
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....g authority. Hence on this ground also the impugned order deserves to be set aside. (ix) It was further pointed out that even when the demand confirmed by the lower authority was challenged, the lower authority en-cashed the Bank Guarantee in violation of guidelines laid down in this regard by the Board. This was also not taken note of by the Commissioner (Appeals). Hence there was a prayer to set aside the impugned order and allow the appeal with consequential relief. 4. The Revenue filed their cross-objections. The learned SDR stated that the Commissioner (Appeals) has gone through all the facts and passed a reasonable order. It was contended by the Revenue that the appellant's contention that the samples from the lot of 1000 MT was not drawn in the presence of the appellant or their Customs House Agent is not correct. It was stated that it was the Customs House Agent who had presented for cargo for examination and at the time of examination, samples were drawn in the presence of CHA only. The same were mixed with previous samples drawn from other lots and then made into two representative samples which were forwarded to the Customs House Laboratory. The representative samp....
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....go by the test report submitted by the appellant as well as the test report of the samples at the destination Port. Now in the present case the concessional rate of duty is available only when the iron content is less than 62%. According to the appellant, the said percentage is less than 62%. In this connection, the test report of M/s. Mitra S.K. Pvt. Ltd. is given below :- "Mitra S. K. Private Ltd. 23-22-14, Beach Road Visakahapatnam - 530 001 (A.P.) Ref No. C/3538 Date : 13-7-2007 CERTIFICATE OF ANALYSIS We hereby certify that an average sample(s) of iron ore fines drawn by our representative during the process of Loading between 5-7-2007 to 10-7-2007 at VISAKHAPATNAM (VIZAG), INDIA into M.V. AN HO has been analysed with the following results :- Name of the Vessel : M.V. AN HO Name of the Ports : VISAKHAPATNAM (VIZAG), INDIA Manifested Quantity : 75213.000 Wet Metric Tons. Moisture at 105 Degree Celsius : 8.33% CHEMICAL COMPOSITIONS (ON DRY BASIS) : FE : 61.07% SI02 : 4.97% AL203 : 4.48% P : 0.045% S : 0.009% PHYSICAL SPECIFICATIONS (N....