TaxTMI 
TaxTMI 
2026 (4) TMI 1097
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....house BE. The goods were accompanied with certificate of quality issued by INTERTEK as condensate. Jagdamba Petro filed BE dated 21.04.2009 under heading no. 27101990 for 1000 MT and took delivery of said stock except 6.209 MT. Shree Ganesh filed BE dated 01.04.2009 under heading no. 27101990 for 100 MT and took delivery of stock except 4.100 MT. Bajrang Petro purchased 1500 MT on high sea sale and filed warehouse BE dated 09.06.2009 for 1500 MT under heading 27101990, which was sold to three parties who filed respective ex bond BE on 12/6/2009 (Bharat Enterprises), 18/06/2009 (Jagdamba Petroleum) and 22/06/2009 (Reliable Industries) respectively and took delivery of goods. 1.1 Out of the remaining quantity of 665.233, Teej sold 100 MT to Shree Ganesh Oleochem for which ex bond BE was filed by them on 26.06.2009, but the same was not physically cleared and was lying in tank no.113. On 28.05.2009, DRI initiated investigation about classification of goods stated to be "condensate" by the Appellant-Importers in these bunch matters. It was found that the Vessel MT Rising had discharged 1783.431 MT at Kandla out of which 659.545 MT was discharged in tank no.113 and balance was discha....
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....ogous to test report of Kandla CRCL. However, as per the department, the test report dated 31.03.2009 issued by CRCL Kandla, 90% distillation was at 208 degrees and therefore, at 2 degrees higher i.e. at 210 degrees, the distillation was naturally a little higher than 90% and, therefore, the same confirms to note 4 of chapter 27. It was on such basis, the department issued SCN dated 18.12.2009 that when such goods fulfil the condition of 90% or more distillation (including losses) at 210 degrees centigrade, the same was covered under light oils and its preparations. The notice also alleged that the certificate of quality issued by Intertek at load port shows 90% at 216 degrees. It was categorically admitted in the notice that in the absence of reading of distillation at 210 degree, exact inference could not be drawn. 1.4 The SCN proposed demand of differential duty of Rs.5,88,887.00 jointly and severally from the importers/buyers. Proposal was made for confiscation of seized goods of 668.476 MT. Charge of wilful misstatement and suppression of facts was alleged. Differential duty amounting to Rs.3,39,74,357.00 was demanded jointly and severally from TEEJ, Bajrang Petro and other....
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....ould be at 210 degree and not upto 210 degree. Said judgment has been relied upon by CESTAT Ahmedabad in the case of Kunjal Synergies P. Ltd. vs. CC, Mundra as reported in 2024 (387) ELT 116 (Tri.Ahmd). * Even otherwise, this Bench while deciding stay application, had observed that the appellant had a strong case on merits. Though the observations in the stay order are not binding, but the same definitely have persuasive value, so long as the same are not rebutted by the department at the time of final hearing. * The panchnama drawn during investigation admitted that the cargo discharged from the vessels MT rising OM declared as condensate was comingled with other cargo declared as condensate and pertaining to M/s. Teej Impex and the samples were not drawn thereafter. Once that was so, no reliance could otherwise be placed on sample test reports as the very method of drawing the sample was not proper, nor indicated to the appellants. * That on one hand the lower authority has held that there was misdeclaration on the part of appellant in classifying the goods as condensate whereas on the other hand the lower authorities in para 35 of the OIO admitted that....
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....ustom duty, CVD and the only differential duty was primarily on account of specific CVD. For example, in BE no.293917 of Reliable Industries the Custom duty is mentioned as Rs.2,65,804.00 and CVD at advalorem rate was Rs.7,81,465.00 which was the same duty as mentioned in calculation of differential duty chart at page 131 of S.C.N. by the department where the custom duty and CVD at advalorem rate assessed under light oil was also the same. The difference was primarily on account of CVD at specific rate, which was otherwise eligible for credit to the appellant. It is otherwise a settled law that when the exercise is revenue neutral, the demand, especially by invoking extended period, is not sustainable. The appellant relies upon the decision of CESTAT in the case of Indus Valley Partners wherein following earlier decisions, the demand was set aside on the issue of revenue neutrality. 2.1 Learned Advocate for Dinesh Nauratmal Gupta submitted as follows:- * Penalty was proposed on his party, being Custom Broker, under Section 112 (a) of Customs Act, 1962. * Ld. Adjudicating Authority has imposed penalty on appellant by observing that "he consciously and deliberate....
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....r alia held that CHA is not liable to penalty under Section 112 of Customs Act, 1962 when he acted on the basis of the documents given to them and there is nothing to show that he was aware of the contents of goods in question. 3. Department contested the challenge of the appellant on the following grounds, apart from reiterating findings of the lower authority. The appellants have taken the following grounds:- * Limitation: (i) None of the appellants contested the invocation of extended period before adjudicating authority. It has been clearly recorded in para 42.3 of the OIO. The principle of exhausting lower forum before approaching higher forum is a settled legal principle. It means that all the arguments and grounds should be raised before lower authority so that it may consider them all. In M/s. Bharat Sanchar Nigam Limited Versus The Commissioner of GST & Central Excise, Chennai-2024(12) TMI 1242- CESTAT, Chennai remanded the matter on the basis that the grounds raised before tribunal were not raised before lower authority and hence, the adjudicating authority could not record its findings on them. The Tribunal held that natural justice is equally applic....
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....same, it is now settled that the date of despatch of notice alone, will be taken into account for limitation." Therefore, when the notice is issued on 18.12.2009, all the Bills of Entry for which Out of Charge is given after 18.06.2009 are covered under normal period of limitation. (v) It cannot also be contended by the appellant that the SCN has been issued invoking the extended period of limitation and therefore, the demand should be dropped completely. It is a settled law that the demand for normal period sustains when it is found that extended period has been invoked wrongly. Therefore, in any case, the demands sustain for the Bills of Entry for which Out of Charge was given after 18.06.2009. (vi) On a possible contention that the SCN has quoted wrong provisions (invoking extended period) and hence, is illegal, Hon'ble Supreme Court in COMMISSIONER OF C. EX. & S.T., ROHTAK VS MERINO PANEL PRODUCT LTD.-2023 (383) E.L.T. 129 (8.C.)/(2022) 1 Centax 59 (5.C.) has held that citation of incorrect source of power does not vitiate the proceedings provided power vests in the authority to begin with. Relevant para is reproduced as under: "16. It is....
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....t is admitted need not be proven. (iv) All high sea buyers were major manufacturers having plants, and they had with them a so-called certificate issued by the foreign supplier, which mentioned classification of goods to be 2709 and still, they chose to change the classification. Above facts prove conclusively that change of classification was done willfully. (v) This fact of changing the classification itself proves the intention of the appellants. In STATE OF MAHARASHTRA VS NATWARLAL DAMODARDAS SONI - 1983 (13) E.L.T. 1620 (S.C.), Hon'ble Supreme Court held that mens rea can be proved on the basis of circumstantial evidences. Relevant para is reproduced: "17. The requisite guilty knowledge or mens rea under Clauses(a) and (b) of Section 135(1) can be established by circumstantial evidence also. In order to substantiate the charge under Clause(b) against the respondent, the prosecution had to prove: (i) that he had acquired possession of or was in any way concerned in keeping or concealing the gold bars; (u) that he knew or had reason to believe that these gold bars were smuggled goods, and thus liable to confiscation under Section ....
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.... (i) Background of inclusion of a specific chapter note for determining the goods to be Light Oil is the WCO report of the scientific subcommittee. Condensate and the products falling under chapter 2710 have overlapping physical and chemical properties. Multiple deliberations happened in WCO in the year 1999 as a result, a new subheading 2709 was created for condensate subsequent to which DGFT issued Policy Circular dated 18.08.1999 prescribing subheading 2709 for condensates. (ii) In this backdrop, chapter note providing the condition that if 90% or more distillation happens at 210° C, the product will be classified as Light Oil was incorporated vide Finance Act, 2000. (iii) In view of the above background, it is clear that there is a huge overlapping in chemical and physical properties of "Condensate" and "Light Oil" (or any product of subheading 2710). Therefore, 90% or more distillation at 210° C is a clear distinguishing feature between "Condensate" and "Light Oil". (iv) In the present case, when chemical examiner was cross examined, he clarified that the prescribed method was used for testing and the opinion that 90% distillation happened at....
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....ort from Intertek also mentioned 90% distillation at 216°C which included losses + residue of 2.5%. It means that 90% distillation, including losses, should be at a temperature less than 216°C. Thus, all the evidences tilt the balance of evidence in favor of revenue. (v) It is misrepresentation of facts that the adjudicating authority has not discussed Intertek report which in fact, has been discussed in para 41. Actually, the report of Intertek strengthens the case of revenue. (vi) When the chapter note is clear and there is a clear report of CRCL that 90% distillation occurred at 208°C, the report is conclusive and the department has thus discharged the burden to prove the classification of imported goods. (vii) The first test report (31.03.2009) or the later clarifications have not been disputed. First test report was not conclusive in the sense that neither it defined the goods nor was the distinguishing test i.e. distillation of 90% material was done. No inference could be drawn from this report. It is the temperature at which 90% or more material is distillated will decide whether the goods will fall under 2709 or 271011. Chemical Examin....
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....ection 28 can be made to change the assessment after Out of Charge/Final assessment of the Bill of Entry. 1) UOI Vs. Jain Shudh Vanaspati Ltd.-1996 (86) E.L.T. 460 (SC):- "5. It is pertinent that a show cause notice under the provisions of Section 28 for payment of Customs duties not levied or short-levied or erroneously refunded can be issued only subsequent to the clearance under Section 47 of the concerned goods. Further, Section 28 provides time limits for the issuance of the show cause notice thereunder commencing from the "relevant date"; "relevant date" is defined by sub-section (3) of Section 28 for the purpose of Section 28 to be the date on which the order for clearance of the goods has been made in a case where duty has not been levied; which is to say that the date upon which the permissible period begins to run is the date of the order under Section 47. The High Court was, therefore, in error in coming to the conclusion that no show cause notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130." 2) Midas Fertchem Impex Pvt Ltd Vs Principal Commissioner of Customs ACC ....
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....in Priya Blue, Flock India and further in ITC Ltd. that the assessments can be modified by either of these two methods. It was also clarified by the Supreme Court in Jain Shuddh Vanaspati that a notice under Section 28 can be issued without modifying the order permitting clearance of goods for home consumption under Section 47." 3) De-Diamond Electric India Pvt. Ltd. Va Principal Commissioner of Customs (Import), New Delhi- (2023) 3 Centax 11 (Tri.-Del): "12. There would be occasions, where duty is paid in excess of what was due or short of what was due. If duty is paid in excess, a claim for refund of the duty so paid in excess can be made under section 27 by the person who paid the duty or who has borne the duty. The question before the Supreme Court in the case of Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) ELT. 145 (S.C.) and Collector Vs. Flock (India) Pvt. Ltd. 2000 (120) ELT. 285 (SC) was whether refund could be claimed in a manner so as to modify the assessment under section 17. The Supreme Court held that refund claim is not an appeal proceeding and the officer sanctioning the refund claim cannot sit in judgment over an ....
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.... has a system of issuing notice and passing of adjudication orders. This power under section 28 is subject to three limitations: (i) WHO only the proper officer can issue a notice under section 28; (ii) WHEN within the normal period of limitation or extended, (iii) WHY-to recover the duty short paid, short levied, not paid and not levied or erroneously refunded. 14. In view of the above, there is no force in the argument of the learned Consultant of the appellant that the demand under section 28 cannot be issued without challenging the self-assessment by the appellant before Commissioner (Appeals). Reliance on the judgment of Supreme Court in ITC Ltd. by the appellant is completely mis-conceived as this is not a case of refund, but is a case of demand of duty under section 28, which is fully permissible. 15. Learned Consultant of the appellant submitted that no demand for duty can be made by the Revenue without getting the classification under the self-assessment by the appellant modified by filing an appeal before Commissioner (Appeals). This submission cannot be accepted in view of the fact that Section 28 itself gives a power of reope....
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....he same were kept in storage terminal of FOCT, Kandla in Tank No.113. The goods were cleared as per bill of entry filed by respective parties. The customs sought analysis report with regard to description and composition, which was provided by CRCL Kandla vide its report dated 31.03.2009. On such basis, goods were allowed to be released as condensate oil falling under heading 27101990 on payment of custom duty, CVD @14% and cess. Similar was the case of other imports by Ganesh Oleochem and Bajrang Petro Chemicals P. Ltd, who in turn sold the same to Bharat Enterprises, Jagdamba Enterprises and Reliable Industries. The bills of entry were filed during the period from 12.6.2009 to 22.06.2009. All said goods were imported by M/s Teej Impex through vessel MT Chemical Progress. b) DRI on the basis of information, initiated investigation on 28.05.2009 and drew samples from comingled oils consisting of part parcel discharged from vessel MT Rising Om and vessel MT Chemical progress. Samples were sent for testing to Vadodara Lab, which vide its report dated 23.06.2009 declared the same to be light oil. The DRI also sought clarification regarding temperature at which distillation of....
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....bed manner. The DRI sent samples to Vadodara which stated the FBP ranging from 261 to 292 degree Celsius for samples drawn from same material, which was otherwise not possible. In any case, Intertek had stated the FBP as 273°c. f) The show cause notice did not dispute certificate of quality issued by Intertek which showed distillation of 90% at 216 degree C. The notice admitted that there was no reading of distillation including losses at 210 degree, which was in fact the only criteria for classification of goods as light oil as settled by Apex court in the case of Krishna Technochem reported in 2022 (279) ELT 273 (SC) that the testing is to be at 210°c. Further, reliance is again placed on para 14 of the judgment of Tata Chemicals wherein it is held that without doubting the certificate of quality, the department cannot go against it. In the instant case, the department has admitted report of Intertek about distillation of 90% at 216 degree and hence, the same was qualified to be light oil in terms of chapter note. Even in para 18.1, the notice admitted that Ganesh Oleochem after testing the parameters in their factory stated the recovery of 89.36% at 240 degree. ....
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....ime barred. It is a settled law that the department cannot argue against the circular/instructions issued by CBEC. k) Even otherwise, the lower authority in para 35 of the impugned order has categorically admitted that clearance of goods by the proper officer was prima facie in order. The show cause notice in para 30 demanded duty jointly and severally which is not provided under the law, whereas the Commissioner confirmed duty demand from respective importers contrary to the allegation in SCN. l) The Commissioner in para 12 of his order has imposed redemption fine of Rs.8 lakhs on M/s. Ganesh Oleochem. The demand of fixed CVD otherwise could not be subjected to levy of penalty and imposition of fine. APPELLANT'S SUBMISSIONS ON REVENUE SUBMISSIONS: * ON LIMITATION: (i) Revenue states that limitation was not urged before the lower authority and hence, could not be raised before CESTAT. This being a question of law, can be raised at any stage. Further, CESTAT had granted stay primarily on the issue of limitation which was not challenged by the department at higher forum. It is also contended that no new fresh material was unearthed as the demand....
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....f CESTAT, Allahabad in the case of Indus Valley Partners. Hence, it is prayed that the appeals be allowed with consequential relief. 5. The Department filed its final written submissions dated 30th January, 2026, wherein it addressed and rebutted various contentions raised by the appellant and also relied upon several judicial precedents in support of its case on different grounds. 6. The appellants have taken the following grounds: (i) Limitation: SCN issued on 18.12.2009 was served on 26.12.2009. Duty in respect of BE No 293925 dated 12.06.2009 was paid on 15.06.2009. Hence, demand issued beyond 6 months under Section 28(1) is time-barred. No new material/fresh revelation was unearthed after the Test Reports dated 31.03.2009, and the demand is issued only on the basis of interpretation of Test Reports, on the basis of which initial clearance was granted. Hence, invocation of extended period is unlawful. (ii) Natural Justice: Para 29 of the OIO mentions that the appellant did not file reply and the Adjudicating Authority proceeded in the case as if no reply had been filed by appellant whereas Para 27 of the OIO clearly records that appellant filed a repl....
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....f Cus. (Import), Mumbai is 2009 (244) ELT 225 (Tri.- Mumbai). d) There is no evidence that appellant connived with CHA firm. The statement of the person from CHA firm was recorded on 06.11.2009 when the department knew all the facts, and still no mention has been made with regard to this in the statement. Further, penalty amount is very high and not in proportion to the offence committed. 7. Revenue further submitted on following points:- (i) "Limitation": * None of the appellants have contested invocation of extended period before the Adjudicating Authority as recorded in para 42.3 of the OIO. The principle of, exhausting lower forum before approaching Hon'ble Tribunal is a settled legal principle and therefore, all the arguments and grounds should be raised before lower authority for consideration. In M/s. Bharat Sanchar Nigam Limited Vs. The Commissioner of GST & Central Excise, Chennai-2024(12) TMI 1242- CESTAT, Chennai remanded the matter on the basis that grounds raised before Tribunal were not raised before lower authority and hence, the Adjudicating Authority could not record its findings on them. It held that natural justice is equally applica....
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....18.06.2009 are covered under normal period of limitation. Further, the SCN has been issued invoking extended period of limitation. Therefore, demand should not be dropped completely as it is a settled law that the demand for normal period sustains when it is found that extended period has been invoked wrongly. * Further, On a possible contention that SCN has quoted wrong provisions (invoking extended period) and hence, is illegal, Hon'ble Supreme Court in Commissioner of C.Ex. & ST. Rohtak Vs Merino Panel Product Ltd 2023 (383) E.L.T. 129 (S.C.) / (2022) 1 Centax 59 (S.C.) has held that citation of incorrect source of power does not vitiate the proceedings provided power vests in the authority to begin with. Relevant para is reproduced as under: "16. It is clear that the latter question goes to the heart of the matter, rather than the issue of whether the show cause notice becomes legally untenable for failure to expressly mention that the valuation of the goods is to be done under Rule 11 read with Rule 9 of the CEVR. On the legal proposition advanced by Learned ASG, we readily affirm that citation of an incorrect source of power does not vitiate the exercise....
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....ll they chose to change the classification is proof of "the change done intentionally". All the high-sea buyers, being big manufacturers of industrial solvents, cannot claim that they did not know the difference between light oil and condensate. Secondly, all have stated that they decided the classification in consultation with their CHA, i.e. Kiran Roadlines, despite having a contrary load port document. Interestingly, another case was booked by DRI in the year 2004 involving the same CHA i.e. Kiran Roadlines. In that case [Pushpal Exports Pvt. Ltd. Vs. Commissioner of Customs, Kandla - 2013 (295) ELT 424 (Tri - Ahmd)], the importers (Vibhuti Shipping is common in the vessel Rising Om case in 2009 and in the case booked in 2004) tried to smuggle Naphtha while declaring the goods as condensate under 2709. This may be the only reason that this time, they tried the classification under CTH 27101990 to escape import restriction under 27101190. The case booked in 2004 has been decided by Hon'ble CESTAT, Ahmedabad, in favour of revenue. * A repeat offender trying different modus every time certainly tilts the case in favour of revenue, keeping in mind the Preponderance of P....
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.... is a process that exploits different boiling points of components of a mixture. The lower boiling point materials are evaporated first and when the vapor is passed through a condenser, it gets condensed. The temperature is increased continuously and different ingredients having different boiling points are condensed in a progressive manner. * There are various indicators in the American Standard for Testing Material (ASTM). The most important and most widely used data points are T10, T50 and T90. These are the temperatures at which corresponding percentage of evaporation happens. T10 indicates the temperature at which 10% liquid evaporates and likewise, T90 is the temperature at which 90% of the liquid evaporates. Reference is invited to the book "Fundamental of Petroleum and Petrochemical Engineering" by Uttam Ray Chaudhuri used for petroleum engineering students. Page 32-34 of the book define T90 and page 25-26 explain the process of distillation. * As per chapter note, if 90% or more of the material distils at 210C, including losses (losses occur due to various factors such as heat losses, vapor leaks, design flaws, etc), the product emerges is "Light Oil". In....
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.... stated during cross examination * Another assertion is that during the cross examination, Chemical Examiner stated that he would provide the record of testing done for the Test Reports dated 31.03.2009 which was not provided. This assertion is wrong as para 31 of the OIO mentions that the records asked for during cross-examination were supplied to Jagdamda vide registered post letter dated 10.12.2010. When they again requested for the records vide letter dated 10.01.2011, the Adjudicating Authority has held that it was merely an attempt to subvert finalization of adjudication proceedings. * Another contention of the appellant that the officers gave out of charge on the basis of the earlier CRCL report and hence, no mala fide intention can be attributed to them. This contention is misplaced since the custom officers gave OOC on the basis of a report which was inconclusive and could not distinguish between "Condensate Oil" and "Light Oil". It is almost impossible to distinguish "Condensate" from "Light Oil" on the basis of physical and chemical properties except for the chapter note regarding more than 90% distillation at 210 degree Centigrade. At best, it can be s....
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....ction 28. 10. There is a distinction between the provision for refund under Section 27 (or Section 118 of the Central Excise Act) and the provision for raising a demand under Section 28 for Section 11A of the Central Excise Act. Refund provisions are not quasi-judicial proceedings. The officer can sanction refund only if excess duty is paid over what is to be paid as per the assessment. He cannot modify the assessment. Self-assessment is done under Section 17(1) and re-assessment is done under Section 17(5). The process of assessment (self-assessment and re-assessment) under Section 17 comes to an end once an order permitting clearance of goods for home consumption under Section 47 is issued by the proper officer. Thereafter, the goods cease to be imported goods and no assessment of duty is possible under Section 17. The only exception is where the duty is provisionally assessed for want of documents, Test Reports, etc. and goods are cleared for home consumption in which case the process of assessment gets completed when the assessment is finalized. 11. Once an order under Section 47 permitting clearance of goods for home consumption is issued, the assessment can ....
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.... it has been decided by High Court of Delhi that where there is no assessment by the officer, i.e. goods are cleared through self-assessment there is nothing to be appealed against. Therefore, the refund can be sanctioned without appealing against the self-assessment. The matter was examined by a Constitution Bench of the Supreme Court in ITC Ltd. v. Commissioner of Central Excise, Kolkata IV 2019 (368) E.LT. 216 (SC) in a batch of Civil Appeals pertaining to Customs, Central Excise as well as Service Tax. It has been held that once an assessment is made, even if it is a self-assessment no refund can be sanctioned unless such self-assessment is appealed against and modified. Thus, insofar as the refunds are concerned, the settled law is that once an assessment is complete, even if it is self-assessment, such assessment must be appealed against before claiming the refund 13. As far as the cases where duty was short levied or short paid or not levied or not paid or erroneously refunded is concerned, unlike the provisions of refund under section 27 (which is a mere mechanical process), a quasi-judicial process has been laid down in Section 28 of the Act. The question which ar....
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....le as credit to the appellants and hence, revenue neutrality is there. This is a misplaced contention for the simple fact that it would lose the purpose of imposing CVD. Credit of CVD is available in every case but it does not mean that once somebody is caught misstating the facts, he is given relief on the basis of revenue neutrality. Here, importability is the main reason why the goods were mis-declared. * Hon'ble Supreme Court in Star Industries Commissioner of Customs (Import) Raigad -2015 (324) E.L.T. 656 (S.C.) [07-10-2015) held that a statutory liability cannot be done away with on the basis of revenue neutrality. Relevant para is reproduced as under: "35. It was submitted by the learned counsel for the assessee that the entire exercise is Revenue neutral because of the reason that the assessee would, in any case, get Cenvat credit of the duty paid. If that is so, this argument in the instant case rather goes against the assessee. Since the assessee is in appeal and if the exercise is Revenue neutral, then there was no need even to file appeal. Be that as it may, if that is so, it is always open to the assessee to claim such a credit." * As has....
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....nge the classification despite having the purported documents issued by Iran Petroleum Commercial Company classifying the goods under chapter 2709. That change of classification was sought by the appellants despite having a document from foreign supplier, indicating it to be classifiable under heading 27101190. The statements recorded indicate that the change of classification was done at the behest and guidance of the CHA i.e. Kiran Roadlines, which incidentally is not a party before us in this matter nor has been show caused in the impugned proceedings, despite the statement indicating that he was the one who had guided the parties. The learned AR has also taken up the background of issuance of DGFT policy circular dated 18.08.1999 prescribing sub-heading 2709 for condensate in the chapter 27 which provides the condition that if 90% of more distillation happens at 210 degrees centigrade then the product will be classified as light oil and this chapter note was incorporated vide Finance Act, 2000. He laid emphasis that 90% or more distillation is the distinguishing feature between condensate and light oil. He also pointed out that the chemical examiner was cross-examined who clari....
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.... imposing CVD. Credit of CVD is available in every case but that does not mean that once somebody is caught, he is given relief on the basis of Revenue neutrality. He relies on the decision of Apex Court in Star Industries Vs. Commissioner of Customs (Import), Raigad reported 2015 (324) E.L.T. 656 (S.C.) which in para 35 held that if Cenvat credit was available in any case to the assessee then he should not have litigated into the matter and appeal should not have been filed to claim that. Revenue neutrality if available can lead to the situation whereby appellant can by itself change the credit of duty paid. 8.5 We have also considered various submissions and case laws submitted by the Advocate in this case. We find that in the decision of CC Kolkata vs. Krishna Technochem P. Ltd. reported in 2022 (379) ELT 273 (SC), the Hon'ble Supreme Court in para 3 has interpreted expression "at" as not been "up to" para 3 is reproduced below:- "3. In the present case, even as per the Chemical Examiner's Report, the range of distillation of the product in question was between 35 degree to 58 degree Celsius which is much below 210 degree Celsius and the word used in sub-heading note....
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....t be looked into. It was also laid down that if method of drawing of samples were not mentioned anywhere, then ISI Methods need to be applied. Para 16 and 17 of the cited orders are relevant and are 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.), that if the method of testing of any item of Central Excise tariff is not mentioned, then the Indian Standard Institution's method should be applied. That this would apply to the Customs Act as well. IS 436 lays down :- ""5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING 5.1 Sub-lots - For the purpose of sampling, the entire quantity of coal in a ship shall be divided into a suitable number of sub-lots of approximately equal weight as specified in Table 1. 5.1.1 A ....
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....erminal M/s. Friends Salt Works & Allied Industries Ltd., Kandla. M/s Vibhuti Shipping Pvt. Ltd., shipping agent of the vessel MT Rising Om, filed an IGM before Custom House, Kandla declaring the said bulk liquid cargo as "Condensate" loaded from Karachi. On being questioned, the master of the vessel and all crew members admitted that vessel MT Rising Om had not arrived from Karachi. They admitted that the cargo was loaded from Mumbai for Iran but was diverted to Kandla from High Seas. The said consignment was originally imported and warehoused at Mumbai and then re-exported declaring its description as "Condensate" and wrongly showing CTH of Methanol because "Condensate" is a canalized item for export. Intelligence suggested that the said bulk liquid cargo was not "Condensate but a distilled petroleum product. On 02/06/2009, the officers of DRI visited storage terminal of M/s. FOCT for quantification and sampling of the cargo and detained the goods stored in tank No. 113 of the said storage terminal under Panchanama dated 02/06/2009 (Placed at Sl. No. 2 of the relied upon documents). The detained goods were consisting of part parcel discharged from vessel MT Rising Om, comingled w....
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....onfirm the description and composition. To this extent, the report dated 31.03.2009 given by the Chemical Examiner, Custom House Laboratory, Kandia, as above, can be said to have answered the requirements indicated in the Test Memo. When the test report does not indicate anything contrary to the declared description of the goods, the assessing officer accepts the same for completion of assessment. In the instant case, when there is no specific entry in the Tariff for Condensate and the fact that the importer sought classification of the goods under sub-heading 2710 1990 (other) and that the chemical analysis report did not indicate anything to the contrary, the assessment of bills of entry and clearance of goods allowed by the proper officer was prima facie in order." It is thus clear that the Adjudicating authority itself has accepted the position that initial classification as "condensate" under Tariff heading 27101990 was found correct by the Assessing Officer and also nothing to the contrary was found in the Chemical analysis report, provided for the purpose. The burden of proof reclassification of goods after investigation was therefore totally on the department. Para 35.1 ....
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....erefore, the distilled quantity, including losses, at 210°C of the temperature reading at 90% distillation of the product is the crucial determinant factor to decide whether the impugned goods are Light Oils or otherwise. It is in this context that the investigating officers specifically requested the Chemical Examiner, Custom House Laboratory, Kandla who had originally tested the samples drawn from the consignment landed per vessel MT Chemical Progress, to report the temperature reading for 90% distillation and the latter vide letter No. KCL/20/T0/2009-10 dated 20.08.2009 informed that the temperature reading at 90% distillation of subject sample was recorded as 208 degree Centigrade. In the light of Chapter Note 4 of Chapter 27 of the Customs Tariff, if 90% or more by volume of the goods classified under Chapter Heading 2710, distills at 210 degree Centigrade, the same is considered as Light Oils. This clearly indicated that the subject cargo was "Light Oil" and not Condensate, as declared." It is thus clear that the results were already available while checking the initial test memo but were neither asked for by the assessing officers nor provided by Dr. G P Sharma Chemic....