TaxTMI 
TaxTMI 
2024 (1) TMI 965
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....er the board circulars. He submits that under the same set of facts involving the same circumstances of the laboratory not having the facility of testing the goods, decided the matter in the case of Asian Granito Vs. CC Mundra 2021 (375) ELT 587 (Tri. Ahmd) and in various judgments, he has relied upon the following judgments and board circulars: Circular No. 43/2017 - Cus Dated 16.11.2017 Circular No. 11/2018- Cus Dated 17.05.2018 Circular No. 15/2019- Cus Dated 07.06.2019 Asian Granito India Vs. CC, Mundra 2021 (375) ELT 587 (Tri. Ahmd.) Chem Plast Vs. Commissioner of Customs, Jamnagar Final Order No. A/11151-11152/2023 Dated 12.05.2023 (Tri. Ahmd.) Gaurav Lubricants Industries Pvt Ltd Vs. Commissioner of Cus, Ahmedabad 2023 (13) Centax 5 (Tri. Ahmd.) CC., C. Ex., & S.T., Noida Vs. Manikya Creations Pvt. Ltd 2019 (365) ELT 130 (Tri-All.) 20 Microns Ltd Vs. CC (Import), Mumbai 2020 (372) ELT 403 (Tri- Mumbai) Gulshan Polyols Ltd Vs. Comm. Of C. Ex., & Service Tax, Meerut 2019 (366) ELT 728 (Tri. All) Comm. Of Cus, Noida Vs. M/s. Sachin Chemical Agencies & M/s. manikya Creations Pvt. Ltd. 20....
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....ified 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 Oil/Sludge Water/Bilge Water/Stop Water/Furnace Oil 1. NTPC Energy Technology Research Alliance (NETRA), NTPC Ltd. Address : Plot No. E-3 Ecotech-II, Greater Noida Gautam Buddha Nagar, Pin - 201308, Uttar Pradesh 2. Central Coal Testing & Research Laboratory Western Coalfields Limited Address : Nara Nari Road, Kalpana Nagar, P.O. Uppalwadi Nagpur, Pin - 440 026, Maharashtra 3. MSME Testing Centre, 65/1 GST Road, Guindy, Chennai, Pin - 600032 Tamil N....
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....orts due to its hazardous nature or for any other reason, the samples shall be forwarded to the concerned laboratory at the earliest. Further, the Commissionerates 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 are requested to issue suitable Public Notice based on aforementioned guidelines, prescribing detailed procedures for empanelment of laboratories, techniques for drawing & dispatching of samples, mechanism to receive online reports etc., for guidance of all concerned. 6. Difficulty faced, if any, may be brought to the notice of the Board. ANNEXURE I Sl. No. Chapter No. Samples to be referred ....
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.... 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 Circular. 3. Additionally, Revenue Laboratories have also acquired the facilities for testing items provided in Annexure II of this Circular. 4. Field formations may therefore first ensure with their respective jurisdictional laboratories that the testing facilities for any particular items listed in the said Circulars are not available with them before forwarding such samples to outside Laboratory(s) listed therein. 5. ....
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....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 facilities, 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 be accepted. Accordingly, we accept the same and classification as claimed by the party on that basis. The appeal is therefore allowed. The appeal filed by the CHA is also accordingly allowed." This Tribunal in the case of M/s. Manikya Creations Pvt Ltd-2019 (365) ELT 130 (Tri-All.) on the identical issue passed the following order: "6. Being aggrieved, Revenue has filed the appeal on the ground ....
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....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 adjudication of notice dated 13.04.2018 also subject to outcome of the sample testing report by CRCL, New Delhi. Report received from CRCL, New Delhi by the authority cannot be a ground for not releasing the goods provisionally and same is subject matter of the petition. If the goods are not released, as directed in order dated 17.09.2018, the Assistant Commissioner, custom House, H....