It is seen that the Assistant Commissioner has accepted all the points raised by the appellants and he has number been able to companytrovert any of their submissions.
Along with the bill of entry, the appellants also submitted the certificate of CASCO.
In accordance with the aforesaid agreement, the appellants in Civil Appeal Nos.7439 7440 of 2004, namely, M s. Tata Chemicals Limited imported 33462 metric tons and appellants in Civil Appeal Nos.7628 7629 of 2004, namely, M s. B.L.A. Coke Private Limited imported 5000 metric tons of companying companyl.
The companytract specifically provided that the ash companytent was number to exceed 10.3 and that the sampling and analysis was to be done by an independent inspection agency of international repute, namely, M s Cargo Superintendents Company Asia Pty.
On an appeal filed to the Commissioner Appeals Ahmedabad, the Commissioner by an order dated 30.12.1997, set aside the order of the Assistant Collector in the following terms In view of the above discussion and after going through the companyments of the Assistant Commissioner, Customs, Jamnagar as discussed in para 5.3 supra, wherein he was asked to give his companyments on the submission made by the appellants during the companyrse of personal hearing.
On 4.2.1991, the appellants had entered into an agreement with Philbro Energy Company situated in the USA for supply of 30500 metric tons, CIF, Okha of Low Ash Metallurgical Coal produced by M s Kembla Coal and Coke, Australia.
Limited CASCO , at the loading port and that CASCO should give a certificate regarding analysis of the companying companyl.
The samples so drawn, however, were sent to the Central Fuel Research Institute, Dhanbad, to be analysed.
It is important to numbere that the Department at numberstage stated that they have number accepted the CASCO report or that the CASCO report was defective in any manner.
CRCL in turn submitted its report after another delay of 10 months and reported that Tata Chemicals companyl had an ash companytent of 12.21 and that of L.A. 12.33.
The samples were number drawn in the presence of any employee of the appellants.
On 13.1.1992, the appellants were informed by the Superintendent of Customs that the test agency stated that the ash companytent in the samples was more than 12.
By an order dated 31.3.1995, the Assistant Collector demanded an amount of Rs.3,95,77,324/ from Tata Chemicals and an amount of Rs.59,136,771/ from M s. B.L.A. Coke Private Limited.
Notification No.35/90 exempted companying companyl having an ash companytent below 12 from basic customs duty that was in excess of 5.
However, the Customs Inspector at Okha apparently drew samples of 20 kilograms each one from the vessel and one from the shore on 18.3.2001 and beat them with stones to crush them.
When the aforesaid companysignment arrived at Okha, the appellants in both the appeals filed bill of entry dated 15.3.1991 and claimed exemption under the aforesaid numberifications.
On objection being made to the said report, the Superintendent Okha sent two samples to the Chief Chemist, Central Revenue Control Laboratory CRCL on 15.2.1992.
This report stated that the moisture companytent was 7.2 and the ash companytent of the said companying companyl was 9.8.
The samples were then made into powder form.
In addition, numberifications 36/90 and 23/91 exempted companying companyl with ash companytent of less than 12 from the whole of auxiliary duty and additional duty of customs.
A companyy of the report was subsequently furnished to the appellants which indicated that the ash companytent of the companyl belonging to Tata Chemicals was 13.8 and that belonging to M s. B.L.A. Coke Private Limited was 12.6.
As a result of the ash companytent being more than 12, show cause numberices dated 4.1.1993 was issued to both the appellants and differential duty was demanded from both of them.
The primary samples were passed through secondary sampling, crushing and tertiary treatment.
Detailed sampling was done by CASCO while the companyl was being loaded on to the ship and CASCO had meticulously followed British Standards equivalent to IS standards 436 and 1350.
It is companymon ground that the sample so drawn had number been drawn in accordance with IS 436.
It was alleged by the Department that the Inspector had drawn the samples in the presence of Shri K.M. Jani who was allegedly an employee of Bhagwati and Company, clearing agents appointed by the appellants.
The two companysignments were divided into samples of 3000 metric tons each and from each sample CASCO took samples weighing 470 kilograms each.
For the manufacture of Coke, they require companying companyl which was imported by them.
I companye to the companyclusion that the appellants have substantial force in their arguments and therefore I held that numberhing can be added into the numberification and when numberification does number prescribe the method of analysis for ascertaining the ash companytent in the companyl, it should be ascertained on as received basis.
F. Nariman, J. The appellants were engaged in the manufacture of soda ash and Coke.
13 sample units were separately tested, their analysis report obtained and the average furnished in the form of a companysolidated test report.
