TaxTMI 
TaxTMI 
2026 (9) TMI 665
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....al sales or export of the same. The Appellant has also obtained the requisite License to sell/trade Naphtha in the local market from the District Magistrate, Kachchh-Bhuj. 1.2. In the normal course of business, the Appellant entered into a contract no. HML/VPL/022/2021-REV1 dated 03.02.2021 with Verzone PTE Ltd. ("Verzone"), for the export of Naphtha. Pursuant to the above, Verzone even made part payment of the consideration in advance. For the purpose of procuring the Naphtha, the Appellant entered into a contract dated 11.01.2021, bearing no. AUR/HML/LN-04/2021(R) with Aureole Trading LLC, UAE ("Aureole") for the supply of Naphtha at the price of AED 1930 with an expected date of shipment of January-February 2021 as per the INCOTERMS CFR-2010. The port of loading was any UAE/OMAN port and port of discharge was any Indian Port. 1.3. As per the above contract, the Appellant opened the documentary credit, i.e., Letter of Credit in favour of Aureole vide Letter of Credit no. 84670FLC0000421 dated 28.01.2021 and amended Letter of credit no. 84670/FLC0000421 through Punjab National Bank as well as Letter of Credit No. 06070211M0000092 dated 17.02.2021 through State Bank of India.....
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....Laboratory, Kandla ("CRCL Kandla") in which it was allegedly observed that the imported goods were mixture of hydrocarbon having following constituents: (i) Density at 15-degree C : 0.6474 CC. (ii) Initial Boiling Point : 40-degree C. (iii) 10% distill V/V : 42-degree C. (iv) 50% distil V/V : 52-degree C. (v) 90% distill V/V :119-degree C. (vi) Flashpoint below 25-degree C. 2.1. The test report by CRCL Kandla did not specify the sample to be Natural Gasoline Liquid ("NGL") or Naphtha and did not specify the testing method under which the sample of the said cargo was tested. That vide letters dated 16.02.2021 and 17.02.2021, the Ld. Deputy Commissioner, Customs requested the Ld. Joint Director CRCL, Kandla to confirm whether the goods are full range Naphtha or otherwise. 2.2. It further appears that in response to the above, the Ld. Joint Director CRCL, Kandla replied vide letter dated 19.02.2021 stating that based on the Analytical, of the Chemist on the sample under reference and available Technical literature on chemistry, the sample under reference is Natural Gasoline Liquid. Simultaneously, at the request of the Appell....
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....ure of goods as stated in paragraph no. 2 of the seizure memo dated 26.02.2021, read thus: "Whereas, from the subject goods imported in Vessel MT TUNA, representative samples were drawn and send by Customs House, Kandla to the Custom House Laboratory, Kandla for testing. After necessary testing, the Chemical Examiner, Custom House Laboratory, Kandla have opined that the sample under reference is Natural Gasoline Liquid. Thus, it appears that the imported goods have been mis-declared and mis-classified as Naphtha under CTH 27101229 by the importer in the aforementioned 07 bills of Entry pending for out of charge at goods registration level at Proper officer of Dock examine filed by the importer at Custom House, Kandla instead of declaring correct description thereof as 'Natural Gasoline Liquid classifiable under CTH No 27101290." 5.1. Vide letter dated 28.02.2021, the Appellant replied to the seizure memo dated 26.02.2021 issued by the Sr. Intelligence Officer, DRI and, inter alia, requested to permit the Appellant to officially draw samples under its supervision of the goods under the above referred bill of entries by following due procedure and further requested to....
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....s; the samples marked as S3 was taken over by the customs officer; and the samples marked as S4 and S5 were handed over to the Appellant. Subsequently, the Ld. Additional Director, DRI issued summons dated 07.04.2021 to Mr. Nitin Didwania, the Appellant's Director with a direction to appear before him on 12.04.2021 and also to provide all the documents in respect of the subject goods and also to tender his statement. 9. The Additional Director, DRI issued another letter dated 08.04.2021 to Mr. Nitin Didwania with a direction to appear before him on 12.04.2021 for the enquiry and informing that the fresh samples are scheduled to be drawn on 09.04.2021. On 12.04.2021, Mr. Nitin Didwania visited the office of the Ld. Additional Director, DRI on 12.04.2021 and his statement was recorded by the officers of the Ld. Additional Director, DRI and Mr. Nitin Didwania submitted all the relevant documents pertaining to the subject goods and as requisitioned by the officers of the Ld. Additional Director, DRI. 10. Vide letter dated 15.04.2021, the Appellant formally requested the Additional Director, DRI to clarify the basis and rationale for the selection of testing parameters adopted....
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....toms Laboratory, Delhi ("CRCL Delhi") with seven specific queries. 14. Vide its Test Report dated 28.05.2021, CRCL Delhi concluded that the sample has a low boiling point liquid extracted from natural gas and that it is NGL. The details of the tested parameters are summarized below: Sr. No. Parameter Analysis 1. Acidity NIL 2. Flash Point (abel) in "C Less than 25 3. Ash (% by wt.) Nil 4. Density at 15°C (gm/ml) 0.6499 5. API gravity 86.12 6. Water content Nil 7. Reactive sulphur Sweet 8. Distillation Initial boiling point Temperature at 5% recovery Temperature at 10% recovery Temperature at 50% recovery Temperature at 90% recovery Final Boiling Point 35 39 40 47.5 78 9. % Evaporated at 60°C 80 10. % Evaporated at 135°C Complete (100%) 11. Total C5 Hydrocarbons 65.89 12. Total C6 Hydrocarbons 20.20 13. Total Aromatics 01.96 14. Total Olefins 05.245 15. As per the appellant, CRCL, Delhi conducted the test only on five (5) parameters whereas CRCL, Kandla tested only two (2) parameters....
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...., the Hon'ble High Court directed the Chief Commissioner of Customs, Kandla, to take a decision on the Appellant's application for provisional release of the subject goods within four weeks. 20. A Special Leave Petition No. 15718 of 2021 filed against the order dated 24.08.2021 came to be dismissed, vide order dated 08.10.2021 with the observation that the customs authorities will comply with the directions of the Hon'ble High Court contained in order dated 24.08.2021 and the Appellant would fully co-operate in this regard. Vide its communication dated 27.10.2021, the decision of the Respondent to reject the Appellant's request for provisional release for re-export of the subject goods was communicated to the Appellant by the Assistant Commissioner of Customs. Being aggrieved by the decision of the Respondent rejecting the request for provisional release for re-export, the Appellant preferred an appeal to this Tribunal, with an application for early hearing of the appeal. Vide its Final Order dated 03.12.2021, this Tribunal allowed the Appellant's appeal by directing the Respondent to permit provisional release and export of the goods on the Appellant's e....
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....pondent to decide the waiver application as directed by this Hon'ble Tribunal within a period of 10 days from the date of the order. Pursuant to the above, Show Cause Notice F. No. GEN/ADJ/ADC/510/2023-Adjn dated 28.03.2023 was issued. The said show cause notice directed the Appellant to show cause to the Hon'ble Additional Commissioner of Customs, Kandla, as to why: (i) The description and classification of the imported goods, declared as Naphtha under CTH 2710 1229, covered under seven bills of entry should not be rejected and the said goods should not be described as NGL and reclassified under CTH 2710 1290; (ii) The assessable value of the imported goods declared as Rs. 79,63,76,540 in the impugned seven bills of entry should not be rejected and the same should not be considered according to the market value, i.e., approximately Rs. 278,95,19,113; (iii) The imported goods should not be held liable for confiscation under Section 111(d), 111(m), 111(p) and 111(0) of the Customs Act, 1962 ("Act"); (iv) Penalty should not be imposed on the Appellant under Sections 112(a), 112(b), 114AA and 117 of the Act; (v) The amount of applic....
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....NGL and not Naphtha, NGL is a sub- specie/kind of Naphtha and thus, the imported goods are correctly classified as Naphtha under CTH 2710 1229. It is pertinent to note that this Hon'ble Tribunal, in Reliance Industries Ltd. v. Commissioner of Customs, Ahmedabad [2024 (10) TMI 1555-CESTAT Ahmedabad], has held that NGL is a subset of the broader genus of chemicals known as Naphtha. 26.1 In the said case though the advance authorization was granted for Naphtha, and the goods imported were found to be NGL, the same was permitted as NGL was a type of Naphtha. The relevant extract of the said judgment is reproduced below: "4. We have carefully considered the submission made by both sides and perused the records. We find that the issue to be decided in the present case is that- (i) whether, even if the imported goods considered as Natural Gasoline Liquid (NGL) as claimed by the revenue, the same falls under the broad description of Naphtha and consequently the clearance of goods under advance authorization which mentioned the imported goods as "Naphtha" is correct and legal or otherwise. (ii) Whether the goods imported by the appellant is "Naphtha" classi....
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....ods imported in NGL is correct then also the clearance of goods under advance authorisation cannot be said to be incorrect or illegal. On this basis itself the entire demand is liable to be set aside. 4.6 Without prejudice to the above, we also find that the NGL is a type of Naphtha which is evident from the legislative changes made under the Finance Act, 2019 with Notification No. 89/2019-Cus (N.T) 10.12.2029 to heading 2710 of the Customs Tariff Act, 1975 whereby the 8 digits tariff items under 6 digits sub heading 271012 which covers light oils and preparations were substituted. As per this substitution, the specific tariff item 27101220 which covered NGL was deleted and three new tariff items 27101221 (Light Naphtha), 27101222 (Heavy Naphtha) and 27101223 (Full Rich Naphtha) were inserted to cover Naphtha. An interpretation of this substitution indicates that the same was brought in effect (a) to end the dispute on classification of Naphtha and NGL (b) to specifically covered all types of Naphtha including NGL. It is for this reason because the specific entry of NGL was deleted as the same goods have rendered the tariff items 27101221, 271012....
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.... correctly declared the same as Naphtha in the subject Bills of Entry. It is submitted that undisputedly, Naphtha and NGL are two different products having distinct chemical composition. It is submitted that in the present case, four independent agencies have provided detailed test reports certifying that the imported goods satisfy the chemical composition and other parameters attributable to Naphtha. 26.5 Further, both the contract for importing goods and the contract for exporting goods covers transactions of Naphtha only. Adhering to all the applicable laws and after opening valid letter of credits through proper banking channels, the Appellant re-exported the subject imported goods which were always meant for re-export. The imported goods have also been re-exported and accepted by the Appellant's customer as 'Naphtha'. No complaints have been received by the Appellant's customer that the said product is not Naphtha. Test Reports issued by four independent agencies certifying that the imported goods are Naphtha 26.6 It is submitted that four independent agencies have certified that the imported goods are Naphtha. At the first instance, even before the go....
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.... 3.1.3 Conclusion: Based on the above observations/results, this sealed naphtha sample (Marked as $5 with Seal No. 715255, Location: MT Tuna) falls under the light naphtha range. 27.1. From the above, it is clear that both the agencies have independently analyzed the samples and based testing against several parameters have concluded that the samples are Naphtha. It is submitted that the said test reports have sought to be ignored by the department basis the allegation that the Appellant had influenced / attempted influence both the said agencies by stating in the Appellant's letters to them that the samples being handed over are Naphtha samples and that the Appellant communicated to the agencies that the customs authorities had reservations on the quality. It is submitted that the above allegation regarding influencing or attempting to influence is factually baseless, erroneous and misconceived. Vide letters dated 16.04.2021, the Appellant had forwarded the samples to both the independent agencies. Irrespective of the subject or the context disclosed in the said letters, the Appellant's direct and concise request/ query to the said agencies has been reproduc....
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....above letter, vide Test Memo dated 15.04.2021, the DRI forwarded a sample to CRCL Delhi requesting them to test the same on certain identified parameters. 28.2 It is submitted that as per the directions of the department, the Appellant submitted the sealed samples marked as S4 and S5 (handed over to the Appellant vide panchnama dated 09.04.2021 in the presence of the DRI and the customs officers) to the two independent laboratories for testing the parameters vide its letters dated 15.04.2021. It is submitted that since April 2021, till the issuance of the show cause notice in March 2023, even after receipt of the Appellant's letter dated 15.04.2021 as well as the test reports of both the independent laboratories, the department did not raise any objections regarding the tested parameters. It is submitted that the Respondent has erred in holding that the two reports cannot be accepted since they appear to be different and contradictory to each other. It is submitted that the said finding is factually incorrect inasmuch as both the reports conclude that the samples are Naphtha. It is submitted that merely because the report issued by Geo Chem does not mention the quality of Na....
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....s submitted that the above test report is clearly cryptic inasmuch as the same purportedly draws the conclusion that the sample is NGL by merely referring to the alleged analysis by the chemist and "available technical literatures on chemistry". The test report does not refer to any test methodology, tested parameters or the analysis. In any event, it is submitted that the Appellant has not been provided with the details of the purported analysis of the chemist or copies of the alleged technical literature on chemistry referred to in the report. Apart from the above, vide test memo dated 15.04.2021, a sample of the imported goods was also sent to CRCL Delhi for the purpose of retesting. Vide the test report dated 28.05.2021, the CRCL Delhi has concluded that the sample is a low boiling liquid extracted from natural gas and that it is NGL. The said test report refers to 14 parameters claimed to be tested. However, the said test report also does not provide any details of the test methodology used. 29.4 From a perusal of the captioned test report dated 15.02.2021 issued by CRCL Kandla and test report dated 28.05.2021 issued by CRCL Delhi, it is pertinent to note that neither repor....
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....our independent agencies as mentioned above. Similarly, the test report dated 28.05.2021 issued by the CRCL, Delhi has drawn conclusions based on testing of limited number of parameters as opposed to the detailed tests carried out by the independent agencies. 30. In this regard, it is pertinent to note that the Bureau of Indian Standards ("BIS") has notified the standards for Naphtha, namely, IS 17794:2022 in March 2022. Hereto annexed and marked as Exhibit "HHH" is the copy of the BIS issued IS 17794:2022. The IIP, Dehradun's test report is comprehensive, covering all parameters set by IS 17794:2022 for petroleum product classification. The CRCL, Kandla and CRCL, Delhi are incomplete, relying only on two (2) and five (5) parameters, insufficient for distinguishing complex hydrocarbons such as Naphtha and Natural Gasoline. Even the report by CRCL Delhi if considered vis-à-vis the notified standards for Naphtha by BIS, the subject goods are proved to be Naphtha, and not NGL. It is submitted that the imported goods fully satisfy the said standards notified for Naphtha. 31. From a bare perusal of the said standards, it is clear that the BIS requires 13 parameters to b....
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....n the definition of NGL as per the US Energy Information Administration and Hess Corporation's Safety Data Sheet of Natural Gasoline, to hold that NGL consists of hydrocarbons with carbon numbers predominantly in the range C5 to C8. It is submitted that the said finding is incorrect inasmuch as NGL actually falls in the range of C2 to C5. It is submitted that even Naphtha has carbon numbers predominantly in the range of C5 to C10. In this regard, reliance is placed on the following stating that Naphtha has carbon numbers in the range of C5 to C10: (i) Definition of Solvent Naphtha (Petroleum) as published by the United States of America Environmental Protection Agency in the Substance Registry Services: A complex combination of hydrocarbons obtained from the distillation of crude oil or natural gasoline. It consists predominantly of saturated hydrocarbons having carbon numbers predominantly in the range of C5 through C10 and boiling in the range of approximately 35.degree.C to 160. degree. C (95.degree. F to 320.degree.F). (ii) Definition of Naphtha as published by Safe Work Australia in the Hazardous Chemical Information System: A complex co....
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....ed to import Naphtha for the purpose of fulfillment of the Appellant's obligations of supply of Naphtha to Verzone, Singapore. It is submitted that till date no complaint or communication is received from Verzone, Singapore that the goods received by them were not Naphtha. It is pertinent to note that both the import and export invoices mention the products as Naphtha. 33. Undisputedly, pursuant to the permission for re-export granted to the Appellant, the Appellant have exported the Naphtha to Verzone vide eight Shipping Bills. It is submitted that in absence of any complaint or communication from Verzone regarding the product exported not being Naphtha, the impugned order holding that the imported goods are not Naphtha is liable to be set aside. In any event, the negative inferences drawn based on the WhatsApp chats referring to a change in the HSN are incorrect. The said change in HSN was pertaining to CTH of Light Naphtha as against Full Range Naphtha. The said change was in no manner related to the import of any NGL. 33.1 Further, it is submitted that the Respondent has erred in drawing a negative inference by placing reliance on certain WhatsApp chats indicating ins....
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....IP and Gen Chem have also tested several parameters which are applicable for both NGL and Naphtha and have concluded that the samples are Naphtha. 33.4. It is pertinent to note that while comparing CRCL Delhi, IIP, and Geo Chem, it may appear that they have all tested parameters that may be applicable to both NGL and Naphtha, however, the critical distinction lies in the depth and specificity of the testing. Geo Chem and IIP conducted comprehensive testing aligned with BIS and ASTM standards, including parameters that are diagnostic of Naphtha. In contrast, CRCL Delhi's testing was limited to overlapping parameters, which, while relevant are, insufficient to conclusively determine the nature of the sample. Therefore, the conclusion drawn by Geo Chem and IIP that the sample is Naphtha is not only reasonable but also technically substantiated. Thus, it is submitted that the Respondent has erred in relying solely on the test report issue by CRCL Delhi and brushing aside the test reports issued by IIP and Geochem to hold that the samples are most akin to NGL and not Naphtha. 33.5. In view of the above, it is submitted that the imported goods are Naphtha and not NGL. There ....
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....f origin is Iraq. Further, undisputedly, no monetary benefit has accrued to the Appellant due to the alleged change in the port of loading / country of origin and the shipper. In any event and even assuming without admitting that the port of loading/ country of origin of the imported goods is Iraq, it is submitted that the Appellant has not applied for any preferential tariff treatment or any other benefit based on the country of origin. In any event, it is submitted that the supplier, Aureole, bought the loaded cargo/goods through Delta Shipping. The same is evident from the fact that even in the other export documents, relied upon by the Respondent, Aureole was mentioned as the Notify Party. In that case, there is no mala fide intention in mentioning the name of Aureole as the name of shipper / supplier. 34.3. In view of the above, it is submitted that there is no misdeclaration in of either the port of loading/ country of origin or the shipper. The assessable value of the imported goods is correct and cannot be rejected based on an ad-hoc value. 35. It is submitted that the assessable value of the imported goods is correctly disclosed based on platts publication and, in....
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.... website's unverified prices all lack the evidentiary rigor mandated by law. The Show Cause Notice proceeded on assumptions and selective reliance, without placing on record any cogent material documentary or technical that would justify the conclusions drawn. As held in Garware Nylons, such an approach is legally unsustainable and must be set aside. It is submitted that by relying upon the prices displayed on the said website without due examination of the same, the department has failed to discharge the burden of proof. In any event, from a bare perusal of the screenshot of the said website annexed as an RUD to the show cause notice under reply, it is clear that the said gasoline price pertains to High Octane - 95 Gasoline. 35.4. It may please be noted that NGL serve a raw materials for various products, including LPG, synthetic rubber, solvents, and importantly, as blending components to create gasoline whereas High Octane-95 Gasoline is a high-performance, specific type of motor fuel designed for a higher Research Octane Number (RON) (95 RON) offering better engine performance, fuel economy, and cleaner combustion. Therefore, both the products, High Octane-95 Gasoline an....
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....ution margins. In contrast, NGL and Naphtha are bulk petrochemical feedstocks, traded on industrial terms and priced based on FOB contracts and refinery gate benchmarks. Valuation under Section 14 of the Customs Act, 1962 and the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 mandates that the value must reflect the transaction value or, where unavailable, be derived from comparable commercial substitutes not unrelated consumer-grade products. 35.7. Thus, it is submitted that the said high octane prices cannot be relied upon for the correct valuation of the imported goods. Further, it is pertinent to note that the department has sought to adopt the price of NGL as on 01.02.2021 as applicable in India. It is submitted that the subject goods having been imported from as alleged), the prices Oman (or in any case from Iran/Iraq applicable in the country of origin / port of loading must be applied for determining the value of the imported goods. 35.8. In view of the above, it is submitted that the assessable value of the imported goods is correctly disclosed and, in any event, the same cannot be rejected based on an ad-hoc value sought adopted by the Resp....
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....LHI], this Hon'ble Tribunal has held thus: 16. The FOB value is the value which the buyer agrees to pay to the seller as a consideration for the goods without including the past of transportation and transit insurance. C&F, on the other hand includes the FOB value the cost of transportation up to the port of destination. CIF includes the FOB value the cost of transportation the cost of transit insurance up to the port of destination. International trade is done, among others, in all three forms. It is for the buyers and the sellers to decide in what form the price will be sold, the currency in which it is to be paid and the value for the goods. This transaction value (either in FOB or CIF or C&F) is a product of negotiation between the buyer and the seller. It is the consideration which the buyer pays to the seller for the goods. This transaction value cannot be altered by anyone who is a stranger to the contract including the customs officers. What the officers can determine under the Customs Valuation Rules is whether to accept the transaction value as the value under the Customs Act to assess duty or to reject it and determine the value following some other method p....
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.... under FEMA also does not get diminished because the officer re-determines a different value as the assessable value. 36.5. Thus, it is submitted that even in the present case, the Respondent it cannot substitute the transaction value of the imported goods with the prices of gasoline appearing on a website. In view of the above, it is submitted that the impugned order, to the extent it re-determines the value of the imported goods, iş liable to be quashed and set aside on this ground itself. The statements of the various persons cannot be relied upon since the procedure prescribed under Section 1388 of the Act has not been followed and no cross-examination has been permitted 36.6. It is further submitted that the statements of various persons cannot be relied upon without following the mandatory procedure prescribed under Section 138B of the Act. Section 138B stipulates that a statement made by a person before a Customs officer shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness and the statement is admitted in evidence. Further, Section 138B(2) states that the above pr....
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....e evidence or statement to be considered. 37.2 In view of the above, it is submitted that the heavy reliance placed on the statements by the Respondent is violative of Section 1388 of the Act. 38. From a bare perusal of the impugned order, it is manifest that the allegations made against the Appellant are primarily based on the said erroneous reliance on the statements and thus, it is submitted that the impugned order is liable to be set aside. In any event, the imported Naphtha is not liable for confiscation under Section 111 of the Act. 39. It is submitted that the imported goods are not liable for confiscation under Sections 111(d) or 111(m) or 111(0) or 111(p) of the Act. The relevant extract of Section 111 of the Act has been reproduced below: SECTION 111. Confiscation of improperly imported goods, etc.- The following goods brought from a place outside India shall be liable to confiscation:- (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; ....
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....lue of the imported goods. It is further submitted that the Appellant has not mis-declared any other particulars in the Bills of Entry. 39.5 As stated above, the Appellant has disclosed the correct particulars with regard to the shipper as well as the country of origin / port of loading. In any event, it is reiterated that the Appellant has not availed any benefit under the Act or the FTP based on the country of origin of the imported goods and thus, the goods are not liable for confiscation under Section 111(m) of the Act. In this regard, reliance is placed on the following judgments: (i) Agarwal Industrial Corporation Ltd. v. Commr. Of Cus., Mangalore, 2020 (373) ELT 280 (Tri.- Bang.) (ii) Vijay Kumar Gandhi v. Commissioner of Cus., Visakhapatnam, 2003 (159) ELT 835 (Tri.- Bang.) (iii) Jagmohan Jindal v. Collector of Customs, 1991 (55) ELT 122 (Tribunal) 39.6 Further, it is submitted that all the relevant particulars, including the shipper and country of origin / port of loading, have been disclosed by the Appellant in the Bills of Entry based on the documents shared with the Appellant by the supplier. In any event, it is submitted that no conditi....
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....uses to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods. 41.1 It is submitted that the Appellant has not knowingly or intentionally made, signed or used any declaration, statement or document which is false or incorrect. 41.2 From the above submissions, it is manifest that the imported goods are Naphtha and are correctly valued. Further, the appropriate amount of customs duty has been correctly discharged by the Appellant at the time of import. 41.3 It is submitted that the case of the department regarding misdeclaration of material particulars in the Bills of Entry and other documents for the purpose of illegal import are baseless and completely incorrect. In any event, it is a settled position in law that no penalty can be imposed where there is no demand. (Coolade Beverages Limited (2004) 172 ELT 451 (All.)). It is submitted that the erroneous and misconceived conclusion was drawn by the department on the basis of the incomplete tests of the imported goods which w....
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....roof lies on the Revenue to establish misdeclaration with substantive material mere assertion is insufficient. 42.1 In the present case, the Department has failed to produce any credible evidence documentary or technical to establish intentional misdeclaration or falsity in material particulars. Reliance on speculative WhatsApp chats and unrelated pricing website falls short of the evidentiary rigor required under the law. Accordingly, the invocation of Section 114AA is not only procedurally flawed but constitutionally unsound. 42.2 In view of the above comparative analysis and judicial precedents, the invocation of Section 114AA in the present case is factually unfounded and legally untenable. The Appellant has acted in good faith, relying on credible technical reports and discharging duty as per declared classification. The Department has failed to establish any deliberate misstatement or material falsity, nor has it produced admissible evidence to support its claim. Accordingly, the imposition of penalty under Section 114AA is liable to be set aside. In any event, no penalty can be imposed on the Appellant under Section 117 of the Act 43. In any event, it is submitte....
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....ex-facie untenable in law. 45. Without prejudice and in any event, the imposition of fine in lieu of confiscation is ex-facie without jurisdiction and without the authority of law having regard to admitted fact that the goods are not available for confiscation. It is a settled position in law that when the goods are not available for confiscation, no fine can be imposed for redemption thereof. In this regard, reliance is placed on the judgment of the Hon'ble Bombay High Court in Commissioner of Customs (Import), Mumbai v.Finesse Creation Ine. [2009 (248) ELT 122 (Bom.ll. wherein the Hon'ble Bombay High Court was pleased to hold thus: 5. In our opinion, the concept of redemption fine arises in the event that goods are available and are to be redeemed. If the goods are not available, there is no question of redemption of the goods. Under Section 125 a power is conferred on the Customs Authorities in case import of goods becoming prohibited on account of breach of the provisions of the Act, rules or notification, to order confiscation of the goods with a discretion in the authorities on passing the order of confiscation, to release the goods on payment of redemptio....
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.... chemical composition and characteristics. Further, it is submitted that the assessable value of the imported goods which was mentioned in the seizure memo dated 26.02.2021 and which claimed to be considered as per the market value has no correlation with the imported goods and appear to have been entered in an ad hoc and arbitrary manner. 46.1 In any event, it is submitted that there is an inordinate and unexplained delay in the issuance of the captioned show cause notice and that is illegal as being violative of the provisions the Customs Act. From a perusal of the records, it is clear that the investigation in respect of the imported goods, including the re-testing directed by the Hon'ble Gujarat High Court, was completed around May 2021 itself. However, the captioned show cause notice is issued on 28.03.2023, after a lapse of almost two years, without any reasonable cause and that makes the show cause notice liable to be dismissed on this count itself. Department submissions: 47. The department in contra submitted its own factual narrative on various grounds for rebuttal. The findings in the impugned order reiterated: 47.1 M/s. HML had imported 20110.77 MT goods....
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....pears that the vessel MT Tuna did not even berth at Sohar, Oman and the country of origin of subject goods was Iraq. From the Bill of Lading No. TN-100019-21 dated 24.01.2021, Certificate of Origin dated 24.01.2021, Cargo Manifest dated 24.01.2021, Commercial Invoice no. TN-100081-21 dated 24.01.2021 and Delivery Order No. 2021-007732 dated 28.01.2021 etc and WhatsApp chat conversations retrieved during investigation, it appears that the port of loading was Basrah, Iraq. Shri Nitin Kumar Didwania, Managing Director of M/s. HML also admitted the mis-declaration of Country of Origin in his statement dated 12.04.2021.It further appears that in order to avoid the country of origin/route of journey and other violations of statutory provisions, the vessel MT Tuna came to India after deliberately switching off the Automatic Identification System (AIS). 47.3 The shipper/supplier of subject goods has been declared as M/s. Delta Shipping & Trading LLC, Sohar, Omanin the corresponding Bills of Lading and M/s. Aureole Trading LLC, UAE in the Bills of Entry filed with Customs Authorities at Kandla. However, investigation revealed that both the said names of shipper/supplier are concocted and....
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....rted by way of fraud, collusion, willful mis-statement and suppression of facts. The facts and major evidences collected so far in this regard, are tabulated here: Material Particulars Declared with Customs in the Bs/E and supporting documents As per investigation Evidences in support of outcome of investigation Description Naphtha (No specific category Lighter Heavy or Full Range, declared) NGL Test Report dated 15.02.2021 read with clarification dated 19.02.2021 of Customs House Laboratory, Kandla, Re-Test Report dated 28.05.2021 pf CRCL, New Delhi and WhatsApp Chat conversations indicating the manipulation in the nature of goods. The statement of Shri Nitin Kumar Didwania in which he deposed that the subject goods imported by them seemed to be extracted from Natural Gas. CTH 27101229 (i.e. for Full Range Naphtha) 27101290 Customs Tariff Value Rs. 79,63,76,540/- (declared assessable value) Rs. 278,95,19,113/- (approximate market value) Website Globalpetrolpriecs.com Country origin of Oman Iraq Certificate of Origin dated 24.01.2021, Commercial Invoice no. TN.10008121 dated24.01.2024, statement of Shri Nitin Kumar Didwani....
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....ggests that the sample is mainly composed of lighter mineral hydrocarbon oil more than 70% by weight and conclusion of the re-test report reads as "The sample is a low boiling liquid extracted from natural gas. It is 'NGL'." 48.5. From the above definitions and as specially elaborated supplementary note of Chapter-27, test results of Customs House Laboratory, Kandla vide Test Report dated 15.02.2021 read with clarification dated 19.02.2021 and conclusive observations of chemical examiners of CRCL, New Delhi conveyed vide re-Test Reports dated 28.05.2021 for the goods imported per vessel MT Tuna, it is revealed that the subject product was a mixture of hydrocarbon, a low boiling petroleum product and was extracted from Natural Gas. Thus, it appears that the subject product imported by M/s. HML per vessels MT Tuna by declaring the same as Naphtha was nothing but NGL (NGL). 48.6. The 04 Test Reports relied upon by M/s. HML in their support appear to be not reliable and maintainable on the following grounds:- (1) Test Report/Certificate of Quality of M/s. Muscut International Shipping & Logistics LLP (MIS) said to be the load port report:- There appear sufficient evidenc....
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....fluence the laboratory by way of making wrong and vague representation and succeeded to get biased report as apparent from the termology used by IIP Dehradun about the testing as illustrated below:- Project Title: - Studies on Sealed Naphtha Samples Report No.: ASD 417:2021: Sealed sample of Naphtha (Marked as S5 with Seal No. 715255), Location: MT Tuna with letter having subject "Testing of sealed samples of naphtha dated 16.04.2021 Naphtha". Introduction: Studies on Sealed Naphtha Samples from M/s. Hazel Mercantile Limited, Mumbai Standard Test Methods: Naphtha samples (Marked as S5 with Seal No. 715255, Location MT Tuna was analysed in our laboratory... ) Results: Naphtha Sample (Marked as S5 with Seal No. 715255 Location: MT Tuna) Report Conclusion: "Based on the above observations/results, this sealed naphtha sample (Marked as S5 with Seal No. 715255, Location MT Tuna) falls under the light naphtha range." 49. As it narrated in foregoing paras that the conclusions of said two reports of M/s. Geo Chem Laboratories Pvt. Ltd. and IIP Dehradun were not in conformity to each other and these reports were not based on the factu....
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....ion, it is apparent that there was no specific entry for goods described as "Naphtha" of different grades. There were no entries for the different grades of solvents, Aviation Gasoline etc. Thus, Naphtha was then classifiable under other category i.e. 27101290. The goods described as "NGL" as per the supplementary Note (b) provided in Chapter 27 of the ITC (HS), was falling at Exim Code 27101220, which was restricted for import by the Policy as well as Policy condition provided against the said Exim Code. As per the Policy, the item NGL falling under Exim Code 27101220 could be imported by STEs and as per the Policy condition (5) prescribed in Chapter 27, the import of said item is allowed through IOC subject to para 2.20 of the FTP, except for the companies, who have been granted rights for marketing of transportation fuels in terms of Ministry of P&G"s Resolution No. P23015/1/2001-MKT, dtd.08.03.2002 including HPCL, BPCL & IBP, who have been marketing transportation fuels before the date. 50.3. Vide Notification No. 41/2015-2020, dtd.05.12.2017, the Central Government had notified the revised Foreign Trade Policy 2015-20 under the provisions of Section 5 of the Foreign Trade (....
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.... Aviation Gasoline conforming to standard IS 1604 27101290 -- Other 50.5. Thus, pursuant to the above changes, the specific entries were provided for the goods of the categories of Naphtha, Solvent, Motor Gasoline and Aviation Gasoline, which were earlier classified under residuary entry of "Others", whereas the entry of NGL earlier available vide CTH No. 27101220 was removed and accordingly the NGL seemingly became classifiable under the residuary entry of 27101290. 50.6. The Central Government vide Notification No. 38/2015-20, dtd.01.01.2020 issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with Para 2.01 of the FTP 2015-20, introduced following changes in respect of the entries available in Chapter 27 of the ITC (HS): - Exim Code Item Description Policy Policy conditions 271012 Light Oils and Preparations Naphtha 2710122 1 Light Naptha State trading Enter prises Import as per Policy conditions (5) of Chapter 27 2710122 2 Heavy Naptha State Trading Enterprises Import as per Policy condition (5) of Chapter 27 2710122 9 Full Range Naphtha ....
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....ng imported by M/s. HML. It further appears that the subject goods being described as NGL being light mineral hydrocarbon oil having low boiling point and extracted from Natural Gas as confirmed in the test reports, the same is appropriately classifiable under 'Others" category with Tariff Heading of CTH 27101290 in the existing tariff and ITC (HS) Classification. However, during the course of investigation and vide their submissions made before Hon'ble Gujarat High Court, M/s. HML challenged the classification of subject goods under CTH 27101290. In this regard, the following further submissions are pertinent to be added here. 50.11 The entries prescribed under sub-heading 271012 ('Light Oils and preparations") of Customs Tariff at the time of import of subject goods are as under: - 2710 1221----------------------------------------------------Light naphtha 2710 1222 --------------------------------------- Heavy naphtha 2710 1229 --------------------------------------- Full range naphtha 2710 1231 -------------------------------------- Solvent 60/80, 2710 1232 -------------------------------------- Solvent 50/120 2710 123....
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....alue declared by M/s. HML is not in inconsonance with the current market price of similar goods being sold in the Indian market. Since no data of the import of Natural Gasoline Liquidis noticed, the prevailing rates of similar Goods (Gasoline)are considered for ascertaining the approximate market value of the subject goods on the basis of rates of Gasoline available on website globalpetrolprces.com. The received quantity of subject goods provided by Shri Bharat Goswami, Terminal Manager, FSWAI in Litres is 31183563 Litres. Considering the market rate of Gasoline at Rs. 88.92 per litre as on 01.02.2021 as per website globalpetrolprces.com, the market value of received quantity 19990.541 MT i.e. 31183563 Litres (out of declared qty. 20110.77 MT) subject goods is calculated as approximately Rs. 278,95,19,113/-. Whereas, M/s. HML has declared the assessable value in the Bills of Entry as Rs. 79,63,76,540/- only which is much lesser even after further value additions on account of customs duty, other taxes and other expenses. 52. In view of the above a SCN dated 28.03.2023 was issued to M/s. Hazel Mercantile and others. SUMMARY OF FINDINGS/OBSERVATIONS OF HON'BLE COURT- 53.....
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....ween Shri Satish Gaichor and Shri Nitin Kumar Didwania, Managing Director of M/s. HML, he stated that vide this Chat, he had asked their Managing Director regarding supply of Gasoline and Gasoil by M/s. HML as per requirement (specifications) from the buyers; that their Managing Director asked him for report/specifications. On being asked, Shri Satish Gaichor, stated that it was not remembered to him whether any further development took place in this regard and whether the said party had supplied them the report/specifications of Gasoline and Gasoil. He added that the details of concerned buyer and said attached specifications, were also not readily remembered /available with him. 56.3. In the WhatsApp printouts taken by Shri Satish Gaichor from his mobile phone, he told that some conversations were held by him with some brokers namely Shri Shyam Tiwari, CAFS (Coal & Freight Services), Ahmedabad, Shri Sreejith, Dubai, Nikhil of Braemer/La Mer, Shri Ranganatha Reshamwala, Dubai etc and Shri Ashok Desai, Head of Department-Logistics of M/s. HML; that he did not have complete address, email Id of any of these brokers and assured to provide the same. He further stated that these bro....
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....n Kumar Didwania replied in negative stating that they had not imported Gasoline/NGL during last five years. He also denied to have supplied any consignment of Gasoline/NGL in transit through India and/or fully outside India during the last five years. Shri Nitin Kumar Didwania was apprised that in his statement dated 25.02.2021, Shri Satish Gaichor explained that some brokers namely Shri Shyam Tiwari, CAFS (Coal & Freight Services), Ahmedabad, Shri Sreejith, Dubai, Nikhil of Braemer/La Mer, Renganath of Reshamwala, Dubai etc and Shri Ashok Desai, Head of Department-Logistics of M/s. HML had discussed with him regarding supply of Gasoline and Gasoil and last cargos etc. through WhatsApp chat messages. On being asked to provide the details of Gasoline imported/purchased/arranged by M/s. HML from/through these brokers/persons during last five years, Shri Nitin Kumar Didwania stated that they had not imported/purchased/arranged Gasoline from/through these brokers/persons during last five years. 58. Statement of Shri Bharat J. Goswami, Terminal Manager of M/s. FSWAI, Khar Rohar Road, Kandla, Kutch, wherein, he interalia, stated that- 58.1. he was working as Terminal Manager in M/....
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....harat J. Goswami stated that all the tanks mentioned above were authorized/nominated by Naphtha License issued by District Magistrate, Kachchh-Bhuj. In this regard, he submitted copy of such Naphtha License and (Petroleum and Explosive Safety Organization (PESO) Licenses issued by Controller of Explosives, Vadodara to their firm, duly signed by him. 58.4. During his statement, Shri Bharat J. Goswami was shown copy of Naphtha License dated 13.11.2020 issued by District Magistrate, Kachchh- Bhuj issued to M/s. HML and asked that in this License, their terminal's Tank No. 531, 533 and 536 were not mentioned/nominated/allowed to store goods declared as Naphtha, whereas they had stored the subject goods in those three tanks too. In reply to the same he stated that his firm received a Naphtha License dated 13.11.2020 issued by District Magistrate, Kachchh-Bhuj in which the Tank numbers were mentioned as 'any available tank". He was further asked how and from whom, another Naphtha License was received, he stated that one Mr. Vinodbhai of M/s. HML working at Gandhidham Branch vide email dated 23.12.2021 sent that License to his firm. 58.5. On being asked, Shri Bharat J. Goswami state....
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....mjyot Agency started work of Customs clearance of consignments of M/s. HML as Customs Broker for Kandla and Mundra port in the year 2000; that he used to contact Shri Nitin Kumar Didwania, Managing Director of M/s. HML 59.2. On being asked, Shri Pramod Soneta stated that as a normal practice with other importers, his firm used to send check lists to importer/exporter before finalizing every Bill of Entry and Shipping Bill and only after receipt of approval of the same from concerned importer/exporter, they filed the Bill of Entry and Shipping Bill. He provided copy of the check list and approval thereof from M/s. HML with respect to three import consignments pertaining to M/s. HML imported in vessel MT Aston-I, MT Tuna and MT Arihant. He also provided sample copy/printouts of email communications held with M/s. HML in respect of said three import consignments. 59.3. On being asked being a Customs Broker why he had not suggested the importer to file the Bill of Entry for goods importer per vessel MT Arihant within the stipulated time period, Shri Pramod Soneta stated that he had repeatedly requested Shri Nitin Kumar Didwania, Managing Director of M/s. HML to file the Bill of E....
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....ated 28.01.2021 opened by M/s. HML in favour of Aureole Trading LLC (UAE) in respect of goods imported in vessel MT Tuna. After perusal of the said documents he stated that he in the application form, Contract dated 11.01.2021 with M/s. Aureole Trading LLC and other supporting documents, the product to be imported was mentioned as 'Light Naphtha" (HS Code 27101221) whereas in the Bills of Entry the same was mentioned as Naphtha (HS Code 27101229) i.e. linked with for Full Range Naphtha; that as regards the difference in the description of goods and CTH mentioned in the all LC documents and Bills of Entry, he stated that he had not seen the LC and supporting documents earlier, so he could not alert or suggest the importer about the same. 60. Statement of Shri IIla Giri Visweswarrao, Manager of M/s. Samudra Marine Services Pvt. Ltd., wherein, he interalia, stated that- 60.1. M/s. Samudra Marine Services Pvt. Ltd. was engaged in the business activities of clearance of import /export consignments acting as vessel agency and Customs Broker; their Head Office is in Mumbai and branch offices are at Sikka, Gandhidham, Pipavav and Budgebudge; that they do not have any office/establish....
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.... in the statement of Shri Nitin Kumar Didwania, Shri IIla Giri Visweswarrao stated that the vessel MT Tuna was brought to Kandla switching off the AIS system but he was not aware why the same was switched off; that he would inquire in the matter and revert back within 02 days. He added that he also found that the timings of vessel Tuna were concocted and manipulated and various other material particulars of all three vessels including the HS Codes for the goods imported per vessel MT Tuna, were manipulated and were false and fabricated; that he found it apparent from these Whatsapp Chat conversations that the vessel MT Tuna did not even berth at Sohar, Oman. 60.4. On being asked, Shri IIla Giri Visweswarrao stated that as an authorized career, they were responsible for collecting the correct and complete details of the cargo they were booking and after confirming correctness thereof also required to declare the same on all declarations and customs papers with their subscribing about correctness thereof; that in case any incorrect details are found they are supposed to inform the Customs department about such instances. He added that they are also required to advise their clients....
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.... order is circulated in all GCC countries Q:- When MT Tuna did not reach Oman, why port oj loading was mis-declared as Sohar, Oman foi subject goods imported in vessel MT Tuna? Ans: - The Bills of Entry were filed by us as per the documents received from the supplier. We have just placed orders for supply oj Naphtha. No benefit oj country of origin was availed by us, and there is no revenue implication and hence there was no malafide intention on ow part behind this. 3 From: Nitin Didwania (owner) Timestamp: 31-13 :58:43(UTC+0) Source App: WhatsApp Do we have Iraq doxs 0for this Q: - What did you manage with Iraq documents? Please provide such documents. 4 From: 98 [email protected] .net Saba.trilliance. Ali Timestamp: 31- 01-2021 13:59:30(UTC+0) Source App: WhatsApp yes we have Ans: - I will ask the suppliers to provide such Iraqi documents if possible and will revert back accordingly within a week time. 5 From: 98 [email protected] .net Saba.trilliance. Ali Timestamp: 31-kandla? 01-2021 14:01:58(UTC+0) Source App: WhatsApp shall we come with iraq dox to 6 From: Nitin Didwania (owner) Tim....
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....Timestamp: 03 - 05 :44:43(UTC+0) Source App: WhatsApp I'm preparing Sohar 0 docs. Will share them with you once ready 15 From: [email protected] Omid Timestamp: 03- 10:39:33(UTC+0) Source App: WhatsApp @971501159789 is it possible to change the name of the 0shipper? The guy provides these docs in Sohar for us uses their company and issues docs usually and can later support those docs this way to be safe Q: - Who was the guy and his company who used to provide you the documents having manipulated/ incorrect material particulars? Ans: - I am not aware. I will inquire with the sender of this message and will revert within a week time. 16 From: [email protected] .net Alex Aby. Hif Timestamp: 03-02discussed, 2021 10:50:35(UTC+0) Source App: WhatsApp @989127025761 as we can use Delta shipping and trading LLC as the Shipper. We did the same last time for Aston 1, which went to india Q: - It appears that similar malpractice of mis-declaration of material particulars was being done for subject goods imported in vessels MT 17 From: [email protected] Alex Aby. Hif Timestamp: 03-02-Delta team only to change the A....
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....: 28-01-2021 06:36:07(UTC+0) Source App: WhatsApp Omid, in the quality analysis, they have missed the oxygenates, can you pls try o get the same. From: [email protected] Saba.trilliance. Ali Timestamp: 28-01-2021 07:25:33(UTC+0) Source App: WhatsApp Hi Mr Nitin, they have recently operational issue in Abadan and thats why cargo is on deep discount. I had not experience of their heavy cargo before. But their light cargo has like 1000 ppm oxy. Better we test in India and see. From: Nitin Didwania (owner) Timestamp: 29-01-2021 12:33:17(UTC+0) Source App: WhatsApp Noted. Good. Only problem is that this cargo is high oxy, I could have blended partial cargo as the oxy of kharg was high. From: [email protected] Alex Aby. Hif Timestamp: 29-01-2021 12:39:45(UTC+0) Source App: WhatsApp We need to do internal transfer documentation first From: [email protected] Alex Aby. Hif Timestamp: 29-01-2021 12:39:56(UTC+0) Source App: WhatsApp In the name of Aureole From: Nitin Didwania (owner) Timestamp: 30-01-2021 07:36:07(UTC+0) Source App: WhatsApp Since the tuna is under problem, it is best that we take possession of our material as ear....
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.....whatsapp.net Saba.trilliance. Ali Timestamp: 01-02-2021 11:15:21(UTC+0) Source App: WhatsApp And idont feel safe for entering into port limits of sohar From: Nitin Didwania (owner) Timestamp: 01-02-2021 11:34:38(UTC+0) Source App: WhatsApp Ais is manageable, but even in jndia they may ask for last port clearance. From: Nitin Didwania (owner) Timestamp: 01-02-2021 11:35:33(UTC+0) Source App: WhatsApp Sts may be difficult .......... try. If nothing else works out, we will bring the cargo to India with Iraq and I will mange but that is the last option. From: [email protected] Saba.trilliance. Ali Timestamp: 01-02-2021 11:53:49(UTC+0) Source App: WhatsApp We can still get sohar dox. From: [email protected] Saba.trilliance. Ali Timestamp: 01-02-2021 11:54:10(UTC+0) Source App: WhatsApp Maybe we use last port clearance as iraq pc? From: Nitin Didwania (owner) Timestamp: 01-02-2021 11:55:27(UTC+0) Source App: WhatsApp Seems fine. This may work. Pls go ahead From: [email protected] Omid Timestamp: 03-02-2021 08:58:00(UTC+0) Source App: WhatsApp Also please let me know if you are OK with the below timings for Tuna. NOR So....
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....per BL nos 63. Further relevant documents were also recovered from the mobile phone of Shri Nitin Kumar Didwania: - (i) A document having title 'Free Zone Bill of Entry", Hamriyah Free Zone dated 28.01.2021 showing port of loading Basrah, Iraq, vessel name-Tuna, Qty. 20110767 KG (ii) one document having title supplier Analysis Report containing Port/location-Basrah/Iraq and vessel Nave-MT Tuna 64. On the basis of above chats and documents discussed above that the subject goods were loaded from Basrah Iraq and were originated in Iraq whereas the same were mis-declared in the import documents submitted with Kandla Customs as loaded from Sohar, Oman and originated from Oman. 65. I find that the following relevant WhatsApp Chat conversations have been retrieved from the mobile phone of Shri Satish Gaichor. Chat No. 2139 with Shri Nitin Kumar Didwania: - Sr. No. Chat Details Body 1 From: [email protected] HML - NKD Timestamp: 31-01-2021 7:21:34 AM(UTC+0) Source App: WhatsApp Body: Hi @971501159789 has tuna been accepted in kamdla? 2 From: [email protected] SG (owner) Timestamp: 11-02-2021 7:28:23 AM(UTC+0) S....
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....4. certificate of Origin for BL#6&7 From: 97150 [email protected] app.net HME - Abby Alex Timestamp: 04-02-2021 11:03:19 AM(UTC+0) Source App: WhatsApp Body: @971501159789 As per your instruction, Tuna is sailing towards the discharge port with AIS turned off 65.1 Following further relevant documents also recovered from the mobile phone of Shri Satish Gaichor. ⮚ Bill of Lading No. TN-100019-21 dated 24.01.2021 ⮚ Free Zone Bill of Entry dated 28.01.2021, Hamriyah Free Zone, Sharjah, UAE (vessel MT Tuna, Bill of Lading No. TN-100019-21) ⮚ Cargo Manifest dated 24.01.2021 ⮚ Certificate of Origin dated 24.01.2021 ⮚ Commercial invoice no. TN-100081-21 dated 24.01.2021 ⮚ Delivery order no. 2021-007732 dated 28.01.2021 66. As per these documents recovered from the mobile phone of Shri Satish Gaichor, the shipper/consignee was mentioned as M/s. Jabal AlAswad Co., Notify address was mentioned as M/s. Aureole Trading (LLC), Hamriyah Free Zone, Sharjah, UAE, vessel Name was MT Tuna, Qty. was 20110.767 MT, Port of Loading was Basrah (Iraq), Shipper"s description of goods was 'Naph....
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....ector of M/s. HML and other key persons that the vessel MT Tuna even did not berth at Sohar, Oman. 69. It is further observed that M/s. Verasco FZE, Hamriyah Free Trade Zone, UAE (previously known as Hazel International FZE), was having Tank storage terminal and processing plant in Sharjah, UAE. In order to get explained the matter and examine the role of M/s. Verasco FZE in manipulation of subject goods with respect to its nature by blending/processing and manipulation of documents with respect to their material particulars, Summons were issued to M/s. Hazel International FZE/ M/s. Verasco FZE, but they did not respond. 69.1 Shri Satish Gaichor was also shown the data contained in his mobile phone which was extracted under Panchnama dated 08.03.2021 to 11.03.2021. After seeing the data, he deposed that this data included the data of his mobile phone which was surrendered by him during Statement dated 25.02.2021. I explained the specific WhatsApp Chats and documents recovered from his mobile phone as under:- Chat No. 1789 with Shri Abby-Alex:- Chat Details Body My comment/submissions on the body/content of chat From: 91829 1990409@s .what'sApp.net SG (own....
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....a. This Bill of Lading and concerned Certificate of Origin contains Country of origin as Iraq and Port of Loading Basrah, Iraq for 20110.767 MT goods. The goods were the same which were imported to Kandla India per vessel MT Tuna. I am not aware the purpose of declaring the country of origin as Oman in the documents submitted with Customs House, Kandla. Our MD Shri Nitin Kumar Didwania can explain the reason for same. From: [email protected] s app.net HME - Abby Alex Timestamp: 03-02-2021 8:58:41 AM(UTC+0) Source App: WhatsApp Body: Also please let me know if you are OK with the below timings for Tuna. NOR Sohar Jan 30th 48 hours of loading Completion of loading Feb 2nd early AM hours I am not aware why did these timings were created though the vessel MT Tuna did not berth at Oman as per Whatsapp chat conversations. Our MD Shri Nitin Kumar Didwania can explain the reason for same. From: [email protected] app.net SG (owner) Timestamp: 04-02-2021 9:52:18 AM(UTC+0) Source App: WhatsApp Body: 3. HS CODE CHANGED IN ALL OBLS. 4. LC DETAILS ADDED IN 6 86 7 These messages were only forwarded by me as received from our MD Shri Nitin Kumar Didwania. I am....
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....o India per said three vessels, Shri Satish Gaichor stated that these documents were not available with him; that their MD Shri Nitin Kumar Didwania is the right person to provide the same. DISCUSSION ON EVIDENCE FROM TEST REPORTS- 71. Relying on various Test reports that were referred to in the order of the Hon'ble High Court of Gujarat, SCN alleged that the goods to be Natural Gasoline Liquid and the noticee submitted that the goods are Naphtha. The Show cause notice has alleged that M/s. Hazel Mercantile Ltd. (M/s. HML) imported 20110.77MT Natural Gasoline Liquid (NGL)/Motor Gasoline in the guise of goods declared as 'Naptha' classifying the same under CTH 27101229. The import of NGL/Motor Gasoline is a restricted item and can be imported through State Trading Enterprise (STEs) only in terms of policy condition of Chapter 27. The noticee argues that the goods are Naptha under CTH 27101229 as per Test reports of Geo Chem and IIP, Dehradun. 72. I find that the department as well as the importer has relied upon various Test reports/Certificates. The Test reports relied upon in the SCN are as follows:- (1) TEST REPORT AND OPINION OF CHEMICAL EXAMINER- ....
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....rts- (1) Test Report/Certificate of Quality of M/s. Muscut International Shipping & Logistics LLP (MIS) said to be the load port report:- I find that there are sufficient evidences in the form of chats and documents which indicate that the port of loading declared by M/s. HML i.e. Sohar, Oman is not correct. Similarly, the shipper/supplier/consignee declared by M/s. HML as M/s. Aureole Trading LLC were not the actual supplier/shipper/consigner. Therefore, the load port report of M/s. MIS loses its authenticity and the same cannot be relied upon as a valid document while deciding the issue of classification. (2) Test Report of M/s. TUV India Pvt. Ltd.:- I find that M/s. HML relied on a Test Report of M/s. TUV India Pvt. Ltd. claiming that the report was pertaining to samples drawn by their surveyor M/s. TUV India Pvt. Ltd. and that the Test Report indicated the subject goods as Naphtha. I find that no permission was sought from Customs authorities while drawing the samples, thus the same can not be relied upon. (3) RE-TESTING BY M/s. HML AS PER ORDER OF HON'BLE HC OF GUJARAT- In Pursuance of the order dated 05.04.2021 of the Hon'ble High Court o....
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.... 210 6 RON (by GC method) 69.9 7 MON (by GC method) 67.8 8 Existent Gum(mg1100 mL) 1.7 9 Distillation, °C IBP 27.0 5%(v/v) 36.5 10%(v/v) 41.0 20%(v/v) 42.0 30%(vlv) 43.0 40%(v/v) 45.0 50%(v/v) 46.5 60%(v/v) 49.0 70%(v/v) 52.5 80%(v/v) 59.0 90%(v/v) 72.5 95%(v/v) 87.5 FBP 115.5 Recovery%(v/v) 96.0 Residue%(v/v) 1.0 Loss%(v/v) 3.0 10 Composition, liquid vor/o Volume % Total Paraffins(Normal & iso) 95.10 Naphthenes 3.86 Olefins 0.22 Aromatics 0.82 n-Paraffins 48.35 11 Composition, liqui....
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....1PM without consulting the statutory authorities. Based on the order dated 05.04.2021 passed by the Court, it appears that the petitioner by its letters supplied a long list of 66 parameters proposed to be tested which was subsequently changed to a proposal of 49 parameters for testing. From reading of the affidavit-in-reply of the respondent, it appears that no parameters were suggested by the petitioner pertaining to the test of goods as Natural Gasoline Liquid. Even if the letters dated 16.02.2021 and 17.02.2021 which are pressed into service by Mr. Nankani are considered as creating a doubt about the Custom House Laboratory what is indicated is that though the lines of investigation was in context of whether the goods was Naphtha, the CRCL report dated 28.05.2021 (page 447 of the paper-book) in accordance with the parameters prescribed by the authorities in the test memo indicate unequivocally that the consignment is that of Natural Gasoline Liquid. We are afraid then when the validity of the reports are disputed inasmuch as it is the case of the Union of India through its investigating agency that the parameters and scientific analysis of the reports on which the peti....
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....pentanes and heavier hydrocarbons) extracted from natural gas. It includes isopentane." 80. As per Hess Corporation's Safety Data Sheet of Natural Gasoline, Natural Gasoline is a complex mixture of petroleum hydrocarbons separated as a liquid from natural gas and/or natural gas liquids from which methane, ethane, propane, butane, and possibly pentane have been extracted. It consists of hydrocarbons with carbon numbers predominantly in the range C5 to C8. 81. From the perusal of Test report of IIP Dehradun, it is seen that the said samples had more concentration of C5-C6 only and the remaining Carbon numbers were very less which indicate that the imported goods were having characteristics of NGL and not naphtha. 82. Further on perusal of the Test report by CRCL, Delhi, I find that the said Test report incorporates not only the parameters of NGL but also of Naphtha. The said Test report tested parameters like Distillation, Flash point, API gravity etc, which are the parameters meant for Naphtha and also tested parameters viz. % Evaporated at 60°C, % evaporated at 135 °C, total C5 and C6 hydrocarbons among others which are the parameters for testing of Natural Gas....
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....s, Naphtha was then classifiable under other category i.e. 27101290. The goods described as "NGL" as per the supplementary Note (b) provided in Chapter 27 of the ITC (HS), was falling at Exim Code 27101220, which was restricted for import by the Policy as well as Policy condition provided against the said Exim Code. As per the Policy, the item NGL falling under Exim Code 27101220 could be imported by STEs and as per the Policy condition (5) prescribed in Chapter 27, the import of said item is allowed through IOC subject to para 2.20 of the FTP, except for the companies, who have been granted rights for marketing of transportation fuels in terms of Ministry of P&G's Resolution No. P23015/1/2001-MKT, dtd.08.03.2002 including HPCL, BPCL & IBP, who have been marketing transportation fuels before the date. 85. Vide Notification No. 41/2015-2020, dtd.05.12.2017, the Central Government had notified the revised Foreign Trade Policy 2015-20 under the provisions of Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, which came into effect from 05.12.2017. 86. In terms of Para 2.01 of the revised Foreign Trade Policy 2015-20, all imports should be free, unless reg....
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....aphtha, Solvent, Motor Gasoline and Aviation Gasoline, which were earlier classified under residuary entry of "Others", whereas the entry of NGL earlier available vide CTH No. 27101220 was removed and accordingly the NGL seemingly became classifiable under the residuary entry of 27101290. 90. The Central Government vide Notification No. 38/2015-20, dtd.01.01.2020 issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with Para 2.01 of the FTP 2015-20, introduced following changes in respect of the entries available in Chapter 27 of the ITC (HS): - 271012 Light Oils and Preparations Naphtha 27101221 Light Naphtha State Trading Enterprises Import as per Policy condition (5) of Chapter 27101222 Heavy Naphtha State Trading Enterprises Import as per Policy condition (5) of Chapter 27101229 Full Range Naphtha State Trading Enterprises Import as per Policy condition (5) of Chapter Solvent 60/80, solvent 50/ 120 and solvent 145/205 (petroleum hydrocarbon solvents) 27101231- 27101239 State Trading Enterprises I....
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....h dated 01.04.2015 against Advance Authorizations. On going through the decision, I find that the Hon'ble Tribunal held that- 4.7 We find that as discussed above the NGL is also a "Naphtha? and therefore, allowed to be cleared under Advance Authorisation, The revenue also contended that ITC HS code of Naphtha and NGL is different, hence, Advance Authorisation having different ITC HS code, i.e. 27101290 and NGL being under 27101220 the clearance of goods cannot be allowed under the Advance Authorisation. We find that as per above discussion, we expressed our view that NGL is also a type of "Naphtha?. So long description is correctly mentioned if ITC HS code is under dispute, clearance under such Advance Authorisation is allowable in view of the judgment in the case of Condor Footwear (I) Limited v. Commr. of Customs, Ahmedabad 2019 (367) E.L.T. 653 (Tri.-Ahmd) which is reproduced below:- "5. We have gone through the rival submissions. We find that appellants are holder of license issued for availment of benefit under Notification No. 93/2004-Cus. It is not disputed that the description in the SION norms covers the goods imported by the appellant. However, the R....
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....ppers/Sandals with PU Sole of all sorts irrespective of ITO (HS) Code, It has been observed that description of import item was classified under ITC (HS) Code 5903 10 90 with effect from the date of issue of the advance authorization. It was observed that in this case, the SION permitted the import item as per Bill of Entry and description covered under ITO (HS) Code 5903 10 90. The sample submitted by the firm has a clear view that item's description allowed under SION at S. No. A-3541 are classified under ITC (HS) Code 3920 49 00 instead of ITC (HS) Code 5903 10 90. Thus, Committee after detailed deliberations in consultation with the representatives of technical authorities present in the meeting felt that in both the heading of ITC (HS) code, the description of item of import and export are the same as per relevant SION, the condition of matching of ITC (HS) Code does not arise here. Hence, in this case, it is clarified that change in the ITC (HS) Code has no bearing on the benefits to be given under advance authorization issued under Para 4.7 of HBP." From the above, it is apparent that as far as the benefit of Notification No. 93/2004-Cus. is concerned, ....
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....ported goods have been declared as Naptha by the importer and department has proposed classification as "Natural Gasoline Liquid". On the basis of Test Report issued by Geo Chem and IIP, Dehradun, I find that the tests have been carried out in order to analyse the parameters of Naphtha and no parameter of NGL had been tested whereas CRCL, Delhi has tested parameters of Naptha viz. Distillation (IBP, 5% recovery, 10% recovery, 50% recovery, 90% recovery and Final Boiling Point), Density at 15 C, Aromatics, Olefins etc. as well as parameters of Natural Gasoline Liquid viz. Total C5, C6 Hydrocarbons, % Evaporated at 60°C, % evaporated at 135°C, Reactive Sulphur etc. 97. On careful analysis of the parameters tested, I find that the parameters tested suggest that the imported goods are most akin to Natural Gasoline Liquid even when some of the parameters are also falling within the limit of Naphtha. 98. I find that the in case of a quandary as to the real nature of goods, test of most akin or closest resemblance has been held to be the valid test of classification by the Hon'ble Supreme Court of India in tha matter of Gastrade International Versus Commissioner of Custo....
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....h some traits matched Naphtha. This conclusion aligns with the Supreme Court's ruling in Gastrade International vs. Commissioner of Customs (2025), which held that for classification, the correct test is not mere probability but determining to which product the goods are "most akin", i.e., the closest in resemblance among the possible classifications. SUMMARY- 100. In view of the above discussion and findings, it is seen that the case pertains to the import of a petroleum product by M/s Hazel Mercantile Ltd. (HML), which was declared as "Naphtha" under Customs Heading 27101229. However, upon examination and testing-particularly by CRCL, Delhi-it was found that the imported goods were actually "Natural Gasoline Liquid" (NGL), a restricted item allowed to be imported only through State Trading Enterprises (STEs) as per the Foreign Trade Policy. The CRCL report, conducted under official direction and encompassing both Naphtha and NGL parameters, conclusively identified the product as "Natural Gasoline Liquid" or NGL. In contrast, private lab (Geo Chem and IIP, Dehradun) reports relied upon by the importer lacked statutory backing, did not test for NGL parameters. 101. It ....
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....ort of NGL; further to this, if to be considered as classifiable as "Petroleum Class A", then the Licence issued under the Petroleum Rules, 1976 is mandatory for import of goods falling under "Petroleum Class A" and only such Petroleum is allowed to be imported which are already in possession of Licence issued under the Petroleum Rules, 1976. As per Notification No. 105-Cus dtd. 06.08.1938, any import made in contravention of the provisions of the Petroleum Act, 1934 (30 of 1934) may have to be treated in deemed violation of the provisions of Section 11 of the Customs Act, 1962. Since the importer in the instant case has failed to follow such compliance, it is clear that they have also violated the provisions of Section 11 of the Customs Act, 1962, which makes such goods liable for confiscation under Section 111(d) and 111(p) of the Customs Act, 1962. 106. Since the goods have been released on provisional basis for the purpose of re-export, Redemption fine is imposable under Section 125 of the Customs Act, 1962. VALUATION OF GOODS- 107. I find that the received quantity of subject goods provided by Shri Bharat Goswami, Terminal Manager, FSWAI in Litres is 31183563 Litres (....
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....L as per Supplementary Note (b) to Chapter 27. It is submitted that in light of the above flaws in the test reports issued by the CRCL, the Respondent erred in relying upon them to hold that the imported goods are NGL. In any event, it is a settled position in law that in case of conflicting test reports, the benefit of doubt must be given to the assessee and the test report in favour of the assessee must be given precedence. 111. In this regard, reliance is placed on the following judgments, copies whereof are enclosed: a. Shri Lakshmi Cotsyn Ltd. v. Commissioner of Cus. & C. Ex., Kanpur, 2011 (263) ELT 299 (Tri.- Del.) b. Commissioner of Customs, Mumbai v. Atlas Mercantile Pvt. Ltd., 2019 (366) ELT 911 (Tri.- Mumbai), Department SLP dismissed on the ground of monetary limits, 2024 (387) ELT 262 (SC) c. Colourtex Industries Pvt. Ltd. v. CC, Ahmedabad, 2024 (2) TMI 1638 - CESTAT Ahmedabad 10. It is submitted that in the present case as well, the reports issued by Geochem and IIP, based on BIS standards for Naphtha, are in favour of the Appellant, whereas the uncorroborated test reports issued by the CRCL, Kandla and CRCL, Delhi, are in favour of the department. Thus, it is submi....
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....xtremely high C5-C6 pentane/hexane concentration-makes the imported cargo chemically and physically 'most akin' to NGL, falling squarely under the restricted category of CTH 27101290. * Supremacy of Chapter Notes Over External Standards: The Supreme Court reiterated that classification must be determined strictly according to the terms of the headings and relative Chapter Notes. The Appellants argue that CRCL did not test parameters specified in external BIS or American GPA standards for Naphtha. However, Supplementary Note (b) to Chapter 27 of the Customs Tariff Act statutorily defines NGL as a 'low boiling liquid petroleum product extracted from Natural Gas.' The CRCL report aligns perfectly with this statutory Tariff definition, which legally supersedes any external, private, or international guidelines the Appellant wishes to selectively apply. 113.2. 'Conflicting Test Reports' and Benefit of Doubt: The Appellants have heavily relied upon the Tribunal decisions in Shri Lakshmi Cotsyn Ltd. 2011 (263) ELT 299 (Tri.- Del.), Atlas Mercantile Pvt. Ltd. 2019 (366) ELT 911 (Tri.- Mumbai), and Colourtex Industries Pvt. Ltd. 2024 (2) TMI 1638 to ....
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....ing the conclusion of the reports based on biased, close ended query. 113.3. Rebuttal Regarding the Hon'ble Gujarat High Court's Observations: The Appellants contend that the Respondent erred in relying on paragraphs 8 to 10 of the Hon'ble Gujarat High Court's Order dated 24.08.2021, arguing that the Court was merely recording opposing contentions and not rendering final findings of fact. * Substantive Evidence Trumps Interim Observations: The validity of the Order-inOriginal does not hinge solely on the interim observations of the Hon'ble High Court. The confiscation and penalties are grounded in absolute, unassailable evidence of fraud that emerged after the High Court's initial involvement. * Proof of Deliberate Fraud (Mens Rea): The Appellants conveniently ignore the digital forensic evidence recovered from their own mobile devices. WhatsApp chats directing the vessel MT Tuna to turn off its AIS transponder, coupled with the forensic recovery of the original Iraqi Bill of Lading, prove beyond any doubt that the cargo originated in Basrah, Iraq, and not Oman. This deliberate fabrication of origin documents completely vitiates any claim t....
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....ies on the revenue laid a useful proposition that technical ambiguity, if any, existing must be resolved on evidence and no opinion or consequences can rest, if the scientific materials is of doubtful nature. 114.2. In 2022 (382) E.L.T 23 (S.C)-C.C, Mundra Vs. Sunrise Traders the Hon'ble Supreme Court held that the expert opinion of chemical Examiners if inconclusive cannot be accepted to disturb classification sought by the assessee. Also, following the decision of the Apex Court in the matter reported in 2026 (395) ELT 429 (Gujarat) in the case of Aparajita Energy Private Limited, the Hon'ble Gujarat High Court further elaborated that the expression 'Most akin' must be shown by the department to have been established, including the extent of characteristic, to change the nature of classification must be shown through the test report. Further, in (2025) 29 Centax. 8 (SC) in the matter of Gastrade International v. Commissioner of Customs Kandla. The Hon'ble Supreme Court while elaborating how the expression 'most akin' should be interpreted in Para 87 of the order observed that if parameters were inconclusive on the basis of evidence available on record, the benefit of doubt mus....
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....ncluded as follows: 118.1. Thus, it is clear that the lab which specializes in the discipline of chemical testing and also has a dedicated section of petroleum and petroleum product has clearly stated the product on the basis of test carried out to be Naphtha. Further, Indian Institute of Petroleum, Dehradun ("IIP"), tests reports which have been often accepted even by the various Courts on perto products has also concluded on the basis of various tests carried out by it that the product falls within the range of light Naphtha. 119. The Objection of the Department that while sending the report the party had stated the product to be Naphtha and therefore the same was improper being suggestive, cannot be given credence as the test of report by IIP is based on elaborate testing to determine the nature of the product. Normally, the lab of a stature will not take a broad description given on its face value. The argument of the AR is rejectable by his, as more detailed report obtained by the party on the samples given to him and sent to Geochem through a very detailed examination has also concluded the product to be Naphtha only. Samples were as drawn by the department only 119.....
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....uter in question, shall be deemed to be also a document for the purposes of this Act and the rules made there under and shall be admissible in any proceedings there under, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible shall be the following, namely:- (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely:- (a) the computer print out containing the statement was produced by the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived: (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating pro....
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....on record so as to provide a substitute for the certificate required under the aforesaid rule. The adversarial statements, if any, of others are required to be subjected to examination and cross-examination which is missing in this case. Again, department has not brought out as to what would have been gained by the appellant by declaring a different country of origin against the preferred documentary evidence. In its various statements, the director concerned of Hezel Mercantile Limited has duly tried to explain each and every WhatsApp talk also and not pointing to any offence having been made. The absence of certificate is clearly in violation of requirements of Section 138C. In this context, we are of the view that the certificate of Section 138C (4) of Customs Act, 1962 can be substituted only by an admissible statements to indicate legal compliance. Further as has been held in (2026) 40 Centex 34 (Tri. Bom) in the matter of M/s. Mukund Steel Ltd. Vs. Commissioner of Customs (NS-III), Raigad, it has to be shown as to what benefit was available to the party by changing the origin of goods when no concessional benefit was being derived Para 26 to 27 of the aforesaid decision becom....
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....culiar facts and circumstances of the adjudication order, which has deviated far from the framework of assessment of goods and relied instead upon untested facts, unproven documents and uncorroborated statements, the findings in the impugned order are jeopardized." 120.3. We are of the view that adjudication order in this case suffers from the same vice of relying on untested facts, unproven documents and un- corroborated statements including the digital evidence, therefore, even in this case also the findings are jeopardized. Also in this, the re-export of cargo has already taken done and accepted. Further, we also find that as approved by the Hon'ble Supreme Court in the matter of Commissioner of Customs Vs. Reliance Industries Limited reported in 2024 (4) TMI 1022-S.C vide order dated 9th April, 2025, the decision of this Tribunal as reported in Reliance Industries Limited Vs. Commissioner of Customs reported in 2024 (10) TMI 1555-CESTAT AHMEDABAD, this Bench (different constitution), inter alia, held as follows:- "4.2 From the above import authorization in the list of import item Naphtha is mentioned under ITC 27101290, though we do not agree that imported goods is ....
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....Hydrocrackers, Naphtha splitters etc. It is generally known as Naphtha. It is further found that Chemical Condensed Dictionary, 6th Edition also defined Naphtha as " A generic term applies to refined, partly refined or unrefined petroleum products and liquid products of natural gas, not less than 10 % of distills below 347°F (175°C) and not less than 95% of which distil below 474°F (240°C) when subjected to distillation in accordance with the standard method of test for distillation of gasoline, naphtha, kerosene and similar petroleum products (ASTMD86)". 4.5 From the above it is evident that naphtha is a genus and NGL is a species. Accordingly, advance authorization specifically covered and allow import of naphtha. It is clear that all species including NGL, would be covered under the genus of Naphtha, and will also automatically get covered by the Advance Authorizations in the present case. In view of this assuming without admitting that the goods in question imported were NGL the same shall have no revenue implication as the said import of Naphtha squarely covered by advance authorization in question. As such there was neither any infirmity in t....
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....on. This becomes more evident from Para 4.10 of the same decision reproduced below:- "4.10 We further find that the department has failed to discharge the burden cast upon them to establish that the subject goods were classifiable under tariff item 27101220 of the Customs Act, 1975 as NGL as against Tariff Item No. 27101290 as Naphtha claimed by the appellant. It is a trite law that burden of proof is on the taxing authorities to show that the particular case or item in question is taxable in the manner claimed by them and it is further the taxing authority to lay evidence in their behalf, this view is supported by Hon'ble Supreme Court Judgment in the of State of Madhya Pradesh vs. Marico Industries ltd reported in 2016 (338) ELT 335 (SC). We also find that TI 27101220 of the Custom Tariff Act, 1975 covers NGL and as per supplementary note (V) under Chapter 27 of Customs Tariff Act, 1975, NGL is defined as " A low boiling liquid petroleum product extracted from natural gas" . Thus, to classify under TI No. 27101220 of the Custom Tariff Act, 1975 as NGL it must satisfy the following conditions:- (i) the product must be low boiling liquid petroleum product & ....
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....ABAD Appearance: MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1 for the Respondent(s) No. 1 MR DEVANG VYAS(2794) for the Respondent(s) No. 2 CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and $ HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 05/04/2021 ORAL ORDER 3 (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH) 1. We have heard Shri Vikram Nankani, learned Senior Counsel assisted by Shri Gaurav Mehta, learned counsel for the petitioner and Shri Devang Vyas, learned Additional Solicitor General for the respondents. 2. Mr. Nankani bas confined this petition only to the limited request that the respondents may get a retesting carried out after drawing fresh samples from the seized goods which are in the custody of the respondent-department. According to Mr. Nankani, this request is made in view of the three different reports having been submitted by the chemical laboratory NOTARY 4 S.M.H.ZAIDI Atumbal & Thane Diet. Rey. No. 3640 My Coovnission * G Expires 25 Sept. 2028 NDIA OF 2 ACVOCAFE CMDCAN1803/7021 GROEN which are on record, He further submits that the petitioner had applied for the retesti....
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.... Point 4. or other wise 5. Distillation Rante Conditions of + whetherit is naphthal or of wise Release : 1. Agalets Bond (A) Bond No. (B) Exp.Date 2. Partial Release Rage Released T.R.Validity In Months ASSTT.COMMISSIONER OF CUSTOMS Signature of Shed P.O. P.O. (D.5.) C.H. KANDLA al 1)Hoy (GROUP PRAKASIMZORTIL Superman- 21/ 20 (Gr.1) Customs, Kandia 00 TEST RESULT - Test Report No. 2659863 Lab ND. 1 Examined 10 Lab Date The Sample as received is in the form of colours Liquid. It is composed of mixture of laquocarbons having faccolting courants :- 1 1) Decity at 15℃ - 0.647 4 Porhul. 1 TECHNICALOPINIONES 2) quintal boiling Point rs 40℃ 3) 10% destre v/v -> 421℃ 1 4) 50% distill V/v-> 52"℃ +] 20% destice V/V - 119'℃ 61 flash Point- > Below 25℃ Analysed and returned to the Asstt. Commissioner or and the Result Technical opinion as above. Remuant Sample Fully Consuined/Retaubed/Returnd. NL चिलका ने131/200 CHILAKÄ„ NARESH. रसायन परीकà¥à¤·à¤• गà¥à¤°à¥‡à¤¡-II Che....
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....mperature at 10 % Recovery Temperature at 50 % Recovery Temperature at 90% recovery Fin al boiling point 09 % Evaporated at 60 ℃ 80 10 % Evaporated Al 135℃ Complete (100 1%) 11 Total CS Hydrocarbons 65.89 12 Total Có Hydrocarbons 20.20 13 Total Arcmatica 01.96 14 Total oleuns 05.245 The sample is a low boiling liquid extracted from natural gas. It is "Natural Gasoline Liquid'. Yours faithfully 14 2057 (Dr T.A. Sreenivasa Rno) Joint Director (NFSG) Copy ToxThe joint Director, C.H. Laboratory, Kandla Scanned by CamScanne Document 4 GC CERTIFICATE GEO GIO.CHRM LALORAJORESMIIVANE 1ANNO WRITING NA *** HAHA UND DAMIT Teatro22021 TEST CERTIFICATE Certificate No. : . VET/21/05/00010] DATE : 11/05/2021 Party's Name & Addres; M/S, HAZEL HERONITILE LIMITED HUNON !. Party's Leber Ref. No.& Dale LETTER WITH SUBJECT "TESTING OF SEALED SAMPLES OF NAPHTHA* DATED 16/04/2021 Sample Desclord as NAPHTHA Date of Receipt of. Sample C7/05/2021 Date's of Anabril 07/05/2021 - 11/05/2021 Tested Lo Specification Sumped / Souled By TUY- 715212 Analysis No. Sample ID Marc PET/21/05/000443 SAMPLE NO : S (as describe....
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....EATZEISALE DATE : 11/05/2021 Confrite No. : PET/21/05/0004-1 Party's Name & Address Pity's Letter Rel. No.& Dete HIS. HAZEL MERCANTILE UMITCO LETTER WITH SURUECT "TESTING OF SEALED SAMPLES OF NAPHTHA" Sample Described as CATED 16/04/2021 Cole d Recep of Simple Dateis cr Anzhe's 07/05/2021 07/05/2021 - 15/05/2021 andre's No ande lo Mat (as described ty Party) TUV - 715712 FET/21/05/000-143-1 LAHE CE IMPORTER ; M/S. IUZEL HERCANTILE LIMITED SURVEYOR SEAL : TUV INDIA PVT. LTD. DISCIPLINE : CHEMICAL TESTING GROUP : PETROLEUM AND PETROLEUM PRODUCTS TEST HETHOD/TECHINIQUE RESULTS MEASURE REQUIREMENTS OSH SPEC SULPHUR (S) ASTHO . 4291 - 16 157 mh/kg (ppm) 550 max. 170 BENZENE CONTENT IP BELOW % vol. " ORGANIC CHLORIDE EXISTENT GULL: ASTM D . 201 . 12 0.7 mg/100ml WASHED mg/100ml S PIOTA + CARDON BREAKIT? : ASTH D - 5134- 09 TOTAL PARAA 94.10 65.0 min. 10.0 min. ISO PARAETIN SERTHENES 0.87 % vol. - OLEFINS 0.05 % VOL. 1.0 max REMARKS : CONFORMS TO OSN SPECIFICATIONS OF NAPHTHA WITH RESPECT TO THE TESTS CARRIED OUT. HOTELL. 1esl Codficates fue the tall sang de are Issued a: PET/1 1/05/000+43 a FET/21/05/000....
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....Ne"e) IVITI3E 2 rross/1 0.01 56(Ne"e) 01 PE 0.00 36(v,v) PA FAME x 1 mg/1 0.02 36(v,v) PE Methanol 00 % (V 7) Aceto ne VA IVI EK x 1 mg/ 1 Ethanol x 1 mg/1 0.00 36(v,v) PI- Propancal x 1 rrogj 0.00 56(Ne e) rap. um- Etuttaincal x 1 mg/1 0.00 36(v,v) Total Oxygenates x 10 mg/1 0.09 36(v,v) 20 R O hi ASThA 02699 ASThA 02699 69.9 23_ MC) hi ASThA 02700 ASThA 02700 67.83 22 Existent Gum ASThA 0533_ ASThA 09B3_ 1.7 29 Acidity 24-Ash 25 API gravity 26 Water Content 27 Reactive Sul phur 25% Evaporated at SO E'en C 29 % Evaporated at 155 E'en C 90|Total C2 Hydrocarbons ASThA 06790 0.00 96 (v,v) 51 Total C2 Hydrocarbons 0.04 96 ( Ne/s. 92 Total Ca 1-lycl roc. rtio ns 0.00 96 (v,v) 55 Total C4- 1-lycl roc. rtio ns 1.12 96 (v,v) 54 Total CS Hydrocarbons 69.99 96 (Ne/Ne) 55 Total Ce Hydrocarbons 24.43_ 96 (v,v) 55 Total C7 Hydrocarbons 7.77 96 (v,v) 97 Total CB Hydrocarbons 2.834 96 (v,v) 53 Total C9 1-lycl roc. rtio ns 0.45 96 (v,v) 59 Total C10 Hydrocarbons 0.00 96 (v.v) 40 Total C11 Hydrocarbons 0.00 96 (v,v) 4-1 Total C12 Hydrocarbons 0.00 96 (v,v) Document 6MT TUINA (NAP....
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....ISO 3405 Light Naphtha - 110 Deg C Max Full Range Naphtha - 205 Deg C Max Heavy Naphtha - 205 Deg C Max Part 18 ASTM D 86, IP 123, ISO 3405 Report (in mg/100 ml) Part 29 ASTM D 381, ASTM 1353 Min 25 %(v/v) Part 181 ASTM D 6730, ASTM D 6839 40 %(v/v) Part 181 ASTM D 6730, ASTM D 6839 Report (in % v/v) Part 181 ASTM D 6730, ASTM D 6839 Report (in % v/v) Part 181 ASTM D 6730, ASTM D 6839 1A MITTUNA [NAPHTHA ANALYSIS COMPARISION) GEOCHEM IP CRCL [Delhi) CRCL (Candia) Se No Parameters Method Result Method Result Method Result Method Result MEX c1mg/l Ethanol <1mg/l 0,00 %/V N-Propanol <1mg/l 0.00 %July TBA N-Butanol <1mg/l 0.00 %//V) Total Oryzenates <10 mg/ 0.03 %y/Y) 20 RON ASTM D2699 ASTM D2699 69.9 11 MON ASTM D2700 ASTM D2700 67.0 22 xistent Gum ASTM D381 ASTM D381 1.7 23 Acidity NIL 24 Ast NIL %M/V. 25 4Pt gravity 16.12 26 |Water Content NIL 17 Reactive Sulphur Sweet 28 % Evaporated at 60 Deg C 40% 29 % Evaporated at 135 Deg C Complete (100%) 30 Total CI Hydrocarbons STMD6730 0.00 %M/M 31 Total C7 Hydrocarbons 0.04 % (M/M Total C3 Hydrocarbons 0.00 % be/V 32 Total C4 Hydrocar....
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....tial boiling point Temperature at 5 % Recovery Temperature at 10 % Recovery Temperature at 50 % Recovery Temperature at 90% recovery Final boiling point 39 40 47.5 78 112 09 % Evaporated at 60 "℃ 80 10 % Evaporated A! 135℃ Complete (100 %) 11 Total CS Hydrocarbons 55.89 12 Total Có Hydrocarbons 20.20 13 Total Aromatico 01.96 14 Total olelins 05.245 The sample is a low boiling liquid extracted from natural gas. It is "Natural Gasoline Liquid'. Yours faithfully (Dr T.A. Sreenivasa Rau) Jolat Director (NFSG) Copy TokThe joint Director, C.H. Laboratory. Kandla Copytrorthe. Scanned by CamScanne Document 8 CERTIFICATE 4159245 GEO TEST CERTIFICATE Certificate No. : . PET/21/05/000143 DATE : 11/05/2021 Party's Name & Address IS. HAZEL MERCANTILE UNITED Party's Letter Ref. No.& Dolc LETTER WITH SUBJECT "TESTING OF SEALED SAMPLES OF NAPHTHA* DATED 16/04/2021 Sample Descalbed as 07/05/2021 - 11/05/2021 Stamped / Sealed By TUY - 715212 Camde ID My PET /21/05/000443 SAMPLE NO : 54 (as described by Party) NAME OF IMPORTER : M/S. HAZEL MERCANTILE LIMITED SURVEYOR SEAL : TLIV INDIA PVT. LTD. D....