TaxTMI 
TaxTMI 
2024 (8) TMI 327
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....NAIR These appeals have been filed by the Appellants against the impugned Order-In-Original No. KND-CUSTM-000-COM-09-2022-23 dated 29.12.2022 passed by the Commissioner of Customs, Kandla. 1.1 The brief fact of the case is that acting upon the intelligence about import of a mixture of petroleum products under the guise of Naphtha with an intention to pay lower rate of import duty, the officers of SIIB initiated investigation into import of goods declared as "Naphtha" that were imported at Kandla per vessel "MT MMM Galveston" on 30.07.2004. The IGM in respect of the said vessel was filed by M/s Vibhuti Shipping Pvt. Ltd. The aforesaid goods were loaded on the said vessel from the ports of Bandar Abbas on 21.07.2004 and Bandar Imam Khomeyni....
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....tigation, a show cause notice dtd. 19.01.2005 was issued to the appellants proposing denial of the benefit of exemption notification No. 21/2002-Cus. dtd, 01.03.2002 and proposing the confiscation of goods and demanding differential duty along with interest and imposition of penalty. The impugned show cause notice was adjudicated vide OIO dtd 29.03.2007. Being aggrieved by the adjudication order dated 29-3-2007 appellants had preferred appeals before Tribunal. Tribunal vide Order dated 18-2-2008 allowed their appeals by way of remand after emphasizing cross-examination of the Chemical Examiner. In compliance with the direction of CESTAT Appellants were allowed to cross-examine Shri Dilip Mehta, Assistant Chemical Examiner, on 10.03.2010. Ac....
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....paratus (ii) Table 3- Sampling, storage and Sample Conditioning. (iii) Table 5- Conditions during test procedure. 2.1 He further submits that impugned order makes it evidently clear that none of the requirement prescribed in the aforesaid table have been complied with. 2.2 He also submits that as per the test results issued by Customs House Laboratory, Kandla the sample does not meet the requirement of Naphtha at room temperature and pressure. However, it is evident that as far as Group1 is concerned, ASTM D86 method nowhere prescribes preparation of apparatus, sampling, storage, sample conditioning and test at room temperature and pressures. Consequently, the opinion given by the Customs Laboratory at Kandla that sample was not Napht....
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....in the laboratories of M/s. Reliance Industries Limited and Oil India Limited. In this context it would be relevant to refer here sub-heading Note 4 to Chapter 27 of the Customs Tariff Act, 1975 which reads as under :- "For the purpose of sub-heading 2710 11 "light oils and preparations" are those of which 90% or more by volume (including losses) distil at 210 degree centigrade (ASTM D86 method)" This is the method (ASTM D86) of testing that was to be performed to ascertain the nature and classification of the goods. 4.1 We find that Tribunal had remanded the matter back for conducting fresh cross-examination of the witness/ Chemist Assistant Grade-I, who was directed to produced the lab records to prove his assertions. From the records....
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....ab records to him and it was for him to prove his assertion that the said prescribed test method i.e ASTM D86 method was followed while testing the subject goods. 4.2 We also find that as per the 'standard test method for distillation of Petroleum products at Atmospheric Pressures' published by ASTM International, United States prescribes specific condition in relation to testing items. We have gone through the test report, cross -examination report and other documents such lab register and impugned order and find that the facts on records clearly established that the none of the requirement prescribed in for ASTM -86 method followed in this matter. Clearly, it is apparent that in the reports and lab records so produced there was no mentio....