TaxTMI 
TaxTMI 
2024 (9) TMI 125
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.... the Customs Laboratory, Kandla i.e. during 2013, the Laboratory was not equipped for testing of the said product and it has been clarified by the Board Circular No. 43/2017-Cus., dated 16.11.2017 and also Board Circular No. 15/2009-Cus. dated 07.06.2009. He submits that considering this position, this Tribunal has allowed the appeal in the case of ASIAN GRANITO INDIA LTD VS. COMMISSIONER OF CUSTOMS, MUNDRA- 2021 (375) E.L.T 597 (Tri. - Ahmd.) 3. Shri. A.R. Kanani, Learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He also placed decision of this Tribunal in the case of Meghraj Chemicals And Agencies vide Final Order No. A/11554/2023 dated 20.07.2023 wherein, the identical product on the basis of Chemical Laboratory Report held classifiable under CTH 2836500. 4. Countering the above judgments relied upon by the Revenue Shri. Vikas Mehta submits that firstly this decision of the Tribunal was ex-parte as none represented on behalf of the appellant in that case. Secondly, this decision has not considered the Division Bench decision of this Tribunal in the case of ASIAN GRANITO INDIA LTD (supra). He submits that the entire....
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....art from confiscation, redemption fine and penalties being imposed on the Appellant. 3. Shri S.R. Dixit, Ld. Counsel appearing for the appellants argued that the samples were not drawn properly, even if in presence of the representative of the Appellant, since sampling was not done as per Clause 4.1 - APPENDIX B IS : 918 : 1985 pertaining to Calcium Carbonate, Precipitated for Cosmetic Industry. It was argued that in terms of the judgment of Hon'ble Apex Court in the case of Tata Chemicals Ltd. - 2015 (320) E.L.T. 45 (S.C.), test reports based on improperly drawn samples were required to be discarded and ignored. 3.1 He further submitted that the Appellant had disputed the sample drawal as well as incapability of Kandla Customs Chemical Lab before lower authority which was not wrongly discarded by original authority. He also submitted that the C.B.E. & C. vide Circular No. 43/2017-Cus., dated 16-11-2017 has categorically admitted that Customs Laboratories are incapable of testing calcite powder due to lack of infrastructure and the Customs labs became so equipped only in the year 2019, as evident from C.B.E. & C. Circular No. 15/2019- Cus., dated 7-6-2019. He heav....
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....learly shows that the product is Natural calcium carbonate and the parameters do not meet the Indian Standards for Precipitated Calcium Carbonate. He also stated that Natural Calcium Carbonate and Calcite are one and the same and as per Hawley's Condensed Chemical Dictionary, Calcite is referred to as CaCO3 and defined to be the most common form of Calcium Carbonate. It is his submission that other handful of imports by other importers from same/similar suppliers, where BEs were filed under CTH 28 and not CTH 25, does not determine correct classification of the goods imported by the Appellant. The Appellant imported the said products by classifying it under Chapter 28 after January, 2014, since there was no revenue implication involved on account of rationalization of BCD under Chapters 25 and 28 on Calcium carbonate for imports from ASEAN countries and in any case there is no estoppel against the law. 3.5 He also submits that the appellant has since bona fidely declared the goods in the Bills of Entry on the basis of import documents, there is no suppression of facts on their part, therefore, extended period ought not to have been invoked. 4. On the other hand, S....
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....aim of the revenue to classify the very goods under CTH 2836 50 00 has no support and must fail. 6. Since the test reports cannot be relied upon in light of the categorical admission in Circular No. 43/2017-Cus., dated 16-11- 2017 regarding lack of infrastructure in Customs Labs to test calcite powder, we do not deem it necessary to examine whether the sampling was properly done as per applicable BIS including Clause 4.1 - APPENDIX B OFIS : 918 : 1985 or otherwise. 7. We also find merit in the submissions made by the Ld. Counsel for the Appellant that even otherwise, the test reports of Kandla Customs Lab do not test all parameters as required under IS : 8767-1978, i.e. the Specification for Precipitated and activated Calcium Carbonate for Paints, and 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. 8. The distinction sought to be made ....