TaxTMI 
TaxTMI 
2023 (11) TMI 1209
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....testing of the samples, which was rejected. Accordingly, the SCNs were issued to the appellant, wherein it was proposed to change the classification from 27101950 (furnace oil) as declared by the appellant to 27109900 (waste oil) as alleged by the revenue. Consequent to the change of nature of goods and classification, it was also alleged that the appellant have mis-declared the value and accordingly, it was proposed to enhance the value of the goods also. The adjudicating authority while passing the adjudication order classified the goods as waste oil under CTH 27109900 and assessed the bills of entry accordingly, consequently the goods were confiscated and imposed redemption fine of Rs. 4 Lakhs in each appeal and imposed penalty of Rs. 82,200/- and 5 Lakhs respectively under Section 112(a) of Customs Act, 1962. The adjudicating authority also enhanced the value of the said imported goods. Being aggrieved by the order in- original the appellant filed the appeals before the Commissioner (Appeals), who accepting the views expressed by the adjudicating authorities rejected the appeals. Therefore the present appeals before us. 2. Shri Dhaval K Shah, learned Counsel appearing on beh....
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....g of samples for testing to the Outside Laboratories - Regarding. I am directed to refer to the Board Circular No. 43/2017-Customs, dated 16th November, 2017 [2017 (355) E.L.T. (T25)] on the subject above cited wherein a list of items and corresponding testing laboratories was annexed where samples could be tested from the identified list. 2. In addition to the existing list of laboratories provided in Annexure to above mentioned Circular, CRCL has identified some more entities annexed herewith as Annexure, where the samples could be tested. 3. Principal Commissioners/Commissioners of Customs are requested to issue suitable Public Notice to bring the same to notice of all concerned. 4. Difficulty faced, if any, may be brought to the notice of the Board. Hindi version will follow. Annexure Sl. No. Chapter No. Samples to be referred Suggested Laboratories (1) (2) (3) (4) 10 27 12. Coking Coal 13. Steam Coal 14. Solvent C-9 15. C-9-C-11 Liquid Paraffins 16. C-14-C-20 N Paraffins 17. Petroleum Bitumen 60/70 18. Diesel Oil 19. Waksol 9-11 A Grade 20. Thinner Off Spec 21. Waste Oil/Sludge O....
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....spective standard sampling technique prescribed by the concerned laboratory for the items under question. The Commissionerate should ascertain sampling requirement with the laboratory concerned before drawing samples from the consignment. The sampling requirements may clearly be specified on the website of the Commissionerate. b. In cases of live consignments which cannot be cleared without getting the test reports due to its hazardous nature or for any other reason, the samples shall be forwarded to the concerned laboratory at the earliest. Further, the Commissionerate's should develop a mechanism in consultation with the laboratories so as to get the test report expeditiously and preferably online. c. In cases where the time taken by laboratory exceeds three days, the importer should invariably be given an option to warehouse goods under section 49 of the Customs Act. d. Testing fee, if any, shall be paid by the importer or the exporter. 4. It is further clarified that aforementioned procedure shall not be applicable in cases where Partner Government Agencies themselves draw the sample. 5. In view of above, the Commissioners of Customs....
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.... the above circular, it can be seen that against waste oil/furnace oil, the Laboratories mentioned in column 4 do not include the CRCL Vadodara and CRCL Delhi. The facility to test the goods namely waste oil and furnace oil was made available which is prescribed under Circular No. 15/2009-Cus dated 07.06.2019, the same is reproduced below: M.F. (D.R.) Circular No. 15/2019-Cus., dated 7-6- 2019 F. No. 401/243/2016-Cus. IV Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes & Customs, New Delhi Subject : Forwarding of samples for testing to the Outside Laboratories - Regarding. I am directed to refer to the Board Circular No. 43/2017-Cus., dated 16th November, 2017 [2017 (355) E.L.T. (T25)] on the subject above cited. In the said Circular, a list of items, the samples of which could not be tested in the revenue laboratories was provided in the Annexure. 2. The Revenue Laboratories have now acquired testing facilities for some of the samples listed in the said Annexure following the up-gradation and induction of more sophisticated equipment. These items are listed in Annexure I annexed with this C....
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....the range of Oil Absorption and other parameters (including particle size) are not found in the present case at all. This IS: 8767-1978 was referred to in the cases of 20 Microns (supra), Gulshan Polyols(supra) as well as in the case of Sakshi Makfin (supra) before concluding that identical product in question was classifiable under Chapter 25 and not under Chapter 28." Similar view was expressed by this Tribunal in the case of M/s. Chem Plast vide order No. A/11151-11152/2023 dated 12.05.2023, wherein it was observed as under: "4. We find from the factual matrix that at the relevant time Kandla port CRCL laboratory, was not having requisite test facility, even as per the case laws cited as well as the CBEC Circular. Further, once a report was received by the party and it sought re-test within reasonable time and simultaneously or even before the test report did test at the private lab same should have been accepted. We also find that the impugned order of the Commissioner (Appeals) gives no reasons as to why the department could not agree with the request of re-test. 5. In view of the facts, we find that the test report as submitted by the party is required to....
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....he CRCL Vadodara or as the case may be CRCL Delhi being not equipped with the facility to test waste oil/furnace oil the test report of the said laboratories cannot be accepted. As regard the submission of the learned Counsel that the department violating the direction of the Hon'ble High Court did not release the goods despite specific direction by the Hon'ble Court, we prima facie find force in the submission, in this regard the relevant order of High Court is reproduced below: "Heard learned Counsels for the parties. The direction contained in para 5 of the order dated 17.09.2018 passed in Special civil Application No. 13267 of 2018 is not complied with and a categorical statement is made by the learned Counsel for the petitioners that the petitioners have furnished full bank guarantee towards security amount of Rs. 9 lakhs for releasing the goods provisionally and the very paragraph further directs that upon fulfillment of the above condition, the respondents shall release the seized goods upon furnishing bank guarantee within 7 days from the date of order and that direction was not complied with and ultimately the above directions were subject to adjudicat....