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2025 (6) TMI 1024
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....d that the representative of the appellant was present when the sampling was done and there was no serious objection. 2. Learned Advocate in rejoinder draws attention of this court to the decision of the Tata Chemicals Ltd. Vs. Commissioner of the Customs (Preventive), Jamnagar- 2015 (320) ELT 45 (SC), in which it was found out against the CESTAT in that matter, that the finding that though samples were drawn contrary to law, importer would be estopped from challenging test report based on the same on the ground that their representative was present when samples were drawn and no objection was taken was an incorrect approach. Para 16 & 17 which are of relevance in this case are being reproduced below:- "16. The admitted position on record is that the samples drawn were not drawn in accordance with law and were drawn with no regard whatsoever to IS 436. That IS 436 would apply to the facts of the present case is made clear by our judgment reported in Bombay Oil Industries (P) Ltd. v. Union of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following Union of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Suppl. (1) SCR 586 = 1977 (1) E.L.T. (J 199) (S.C.), ....
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....ok the samples. Shri K.M. Jani who was allegedly present not only stated that he did not represent the Clearing Agent of the appellants in that he was not their employee but also stated that he was not present when the samples were taken. In fact, therefore, there was no representative of the appellants when the samples were taken. In law equally the Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is Illegal cannot convert itself into something legal by the act of a third person." 2.1 The learned Advocate also seeks to rely on the decision as reported 2015 (322) ELT 607 (P&H) in the case of Gupta Agri Care Pvt. Ltd. Vs. Union of India, in which direction was given to re-draw homogeneous representative samples for their analysis for re-testing the same. 2.3 Further, he has specifically relied upon the decision as reported in 2015 (322) ELT 528 (Tri. -Mum....
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....tained on tests of dieletric strength, resistance to oxidation, and sludge formation may be erroneous. 4.1.1 Plastic Bottles Made of suitable unpigmented linear polyethylene may be used for the handling and storage of gas oil, diesel oil, fuel oil and lubricating oil. They should not be used for gasoline, aviation jet fuel, kerosene, crude oil, white spirit, medicinal white oil and special boiling point products unless testing indicates there is no problem with solubility, contamination, or loss of light ends. NOTES 1 In no circumstances shall non-linear (conventional) polyethylene containers be used to store samples of liquid hydrocarbons. This is to avoid sample contamination or sample bottle failure. Used engine-oil samples that may have been subjected to fuel dilution should not be stored in plastic containers. 2 Plastic bottles have an advantage. They will not shatter like glass or corrode like metal containers. They are generally used only once and discarded so that recleaning and recovery procedures are not required 4.2 Container Closure Cork or glass stoppers, or screw caps of plastic or metal, may be used for g....
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....ing these products. 5.2 Crude Petroleum and Heavy Fuels Usually are non-homogeneous. Automatic samplers are recommended for sediment and water (S&W) and density measurement. 5.2.1 Tank samples may not be representative because. 5.2.1.1 The concentration of entrained water is higher near the bottom. The running sample or the composite of the upper, middle and lower sample may not represent the concentration of entrained water. 5.2.1.2 The interface between oil and free water is difficult to measure, especially, in the presence of emulsion, layers, or sludge. 5.2.1.3 Determining the volume of free water is difficult because the free water level varies across the tank bottom surface. The bottom is often covered by pools of free water or water emulsion impounded by layers of sludge or wax. 5.3 Gasoline and Distillate Products Usually are homogeneous but they are often shipped from tanks that have clearly separated water on the bottom. Tank sampling is acceptable under the conditions covered in Foreword. 5.4 When using tank samples, the S&W deduction is usually the sum of the free water volume (usually dete....
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....sentative of this lower third. Automatic line sampling is recommended in such cases. If this is not possible, an outlet sample or bottom sample should be required instead of the lower sample. In addition, a bottom thieving should be made for both opening and closing gauges so that any change in the S&W level at the bottom of the lank may be observed and noted. 5.6.1.2 Where tank samples must be used for crude oil fiscalization and the tanks do not have swing suction lines or weirs, it is recommended that upper, middle, and outlet samples be taken. These samples should be tested and reported separately. The S&W deduction should be the average of the three values. Other analyses should also be averaged. 5.6.2 Ship or Barge Transfers Samples of ship cargoes of crude petroleum may be taken by the following methods by mutual agreement. 5.6.2.1 From the shore tanks before loading and both before and after discharging as previously described. 5.6.2.2 From the pipeline during discharging or loading. Pipeline samples may be taken either manually or with an automatic sampler. If the pipeline requires displacement or flushing, care must be taken th....
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....Packages in Lot Number of Packages to be Sampled (1) (2) (3) (4) 1 to 3 all I 332 to 1 728 12 4 to 64 4 I 729 to 2 197 13 65 to 125 5 2 198to2744 14 126to216 6 2 745 to 3 37s 15 217 to 343 7 3 376 to 4 096 16 344to 512 8 4097to4913 17 513 to 729 9 4914to5832 18 730 to 1 000 10 5833to6859 19 1001 to 1331 11 6 860 or above 20 5.8 Obtaining Samples 5.8.1 Extreme care and good judgment are necessary to ensure samples are obtained that represent the general character and average condition of the material. Clean hands are important. Clean gloves may be worn but only when absolutely necessary, such as in cold weather, or when handling at a high temperature, or for reasons of safety. Select wiping clothes so that lint is not introduced, which would contaminate samples. 5.8.2 As many petroleum vapours are toxic and flammable, avoid breathing them or igniting them from an open flame or a spark produced by static. Follow all safety precautions specific to the material being sampled. 5.8.3 When sampling relatively volatile products more ....
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....board cartons into which the sample bottles may be placed immediately after collection. 5.9.3 Refined Materials Protect highly refined products from moisture and dust by placing paper, plastic, or metal foil over the stopper and the top of the container. 5.9.4 Container Outage Never completely fill a sample container, but allow adequate room for expansion, taking into consideration the temperature of the liquid at the time of filling and the probable maximum temperature to which the filled container may be subjected. 5.10 Shipping Samples To prevent loss of liquid and vapour during shipment, and to protect against moisture and dust, cover the stoppers of glass bottles with plastic caps that have been swelled in water, wipe dry, place over the tops of the stoppered bottles, and allow to shrink tightly in place. Screw the caps of metal containers down tightly and check for leakage. Appropriate regulations applying to the shipment of flammable liquids must be observed. 5.11 Labelling Sample Containers Label the container immediately after a sample is obtained. Use waterproof and oilproof ink or a pencil hard enoug....