C.C. & C.E. & S.T. v. Manikya Creations (P) Ltd.

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The Tax Publishers2019 TaxPub(EX) 89 2018 (365) E.L.T. 130 IN THE CESTAT, ALLAHABAD BENCH ARCHANA WADHWA, JUDICIAL MEMBER & ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) C.C. & C.E. & S.T. v. Manikya Creations (P) Ltd. Appeal No. C/70184/2015-CU(DB)/ALL Order C/A/70964/2018-CU(DB)/ALL 22 May, 2018 *Citations:* M/s. Rathi Enterprises v. CCE. & CE. & ST. Noida 2015 (2) TMI 81--CESTAT NEW DELHI Appellant by: Rajeev Ranjan (Joint Commissioner) A.R. Respondent by: Vaibhav Dixit, Advocate ORDER *Archana Wadhwa* The assessee is (P) Ltd. Co. and engaged in the business of import of Chalk-Natural Calcium Carbonate (Natural Uncoated Ground Calcium Carbonate) from Vietnam and thereafter selling the same within the country. The appellant claimed to have imported Natural Ground Calcium Carbonate e.g. Calcite and Chalk Powder which is classified under Ch. 25 of the Customs Tariff e.g. Calcite (25309030), Chalk (25090000). On 4-6-2013 some samples of the imported consignment of similar product were sent by the customs authorities, ICD Loni, vide Test Memo Nos. 208 dated 4-6-2013, 210 dated 12-6-2013 and 211 dated 12-6-2013 to CRCL, New Delhi. However, the samples were returned back by the CRCL with their covering letter where in they admitted that they do not possess the facility to conduct the test of Natural Calcium Carbonate and returned the samples to the Custom authorities. The ICD-Loni again sent the samples of Natural Calcium Carbonate to CRCL Delhi vide test Memo No. 259 and 260 both dated 11-9-2013 but this time to CRCL returned the samples with out testing with their remark on the face of the Test Memo that FOR THE WANT OF REQUIRED FACILITIES, THIS LABORATORY IS NOT ABLE TO ANALYSE THE SAMPLE OF CALCITE POWDER (UNCOATED) PRESENTLY. The samples were then sent for testing to Indian Bureau of Mines, Nagpur from ICD-Loni for similar product. However, Indian Bureau of Mines also expressed their inability to test the samples due to lack of certain testing equipments with them and returned back the samples to the customs authorities. In a reply under RTI Act, given to one of appellant business colleague, where in they sought details of the equipments/machines installed/purchased by CRCL after 13-9-2013 (i.e. after the date when CRCL returned the samples without testing on account of non possession of equipments) for testing samples of Calcite Powder/Natural Calcium Carbonate. The CRCL vide letter dated 25-7-2014 stating that:- No new equipments/machines have been installed/purchased specifically for testing the sample of calcite powder/calcium carbonate after 13-9-2013. On account of incapability of conducting test of subject product by CRCL Delhi and Indian Bureau of Mines, Customs staff at ICD-Loni started sending samples to a NABL accredited Lab namely Spectro Analytical Labs Limited. Okhla New Delhi. The samples of the appellant were sent to Spectro Analytical Labs Ltd., New Delhi from IDC-Loni due to refusal of CRCL for testing of the said samples of same commodity i.e. Chalk Powder. Accordingly, Spectro Analytical Labs Ltd. replied to all the 10 queries enquired by Customs, ICD-Loni in their Test Memo including those mentioned at serial No. 9 & 10 of the Test Memo and categorically distinguished the crystalline structure of the samples by using XRD and SEM and identified the sample as Natural Uncoated Ground Calcium Carbonate. The ICD-Loni, again sent samples for testing to CRCL despite the fact that CRCL, New Delhi was not equipped with testing equipments to test the samples and even the request of the department for testing was earlier turned down by CRCL, New Delhi. The Test Memo No. 112 dated 24-3-2014 contained 10 queries, similar to the earlier Test Memos sent to the NABL accredited laboratories. Queries mentioned at Serial No. 9 and 10 of the Test Memo, are reproduced hereunder:- SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2019 TaxPub(EX) 89 2018 (365) E.L.T. 130

IN THE CESTAT, ALLAHABAD BENCH

ARCHANA WADHWA, JUDICIAL MEMBER & ANIL G. SHAKKARWAR, MEMBER (TECHNICAL)

C.C. & C.E. & S.T. v. Manikya Creations (P) Ltd.

Appeal No. C/70184/2015-CU(DB)/ALL

Order C/A/70964/2018-CU(DB)/ALL

22 May, 2018

Citations:

M/s. Rathi Enterprises v. CCE. & CE. & ST. Noida 2015 (2) TMI 81--CESTAT NEW DELHI

Appellant by: Rajeev Ranjan (Joint Commissioner) A.R.

Respondent by: Vaibhav Dixit, Advocate

ORDER

Archana Wadhwa

The assessee is (P) Ltd. Co. and engaged in the business of import of Chalk-Natural Calcium Carbonate (Natural Uncoated Ground Calcium Carbonate) from Vietnam and thereafter selling the same within the country. The appellant claimed to have imported Natural Ground Calcium Carbonate e.g. Calcite and Chalk Powder which is classified under Ch. 25 of the Customs Tariff e.g. Calcite (25309030), Chalk (25090000). On 4-6-2013 some samples of the imported consignment of similar product were sent by the customs authorities, ICD Loni, vide Test Memo Nos. 208 dated 4-6-2013, 210 dated 12-6-2013 and 211 dated 12-6-2013 to CRCL, New Delhi. However, the samples were returned back by the CRCL with their covering letter where in they admitted that they do not possess the facility to conduct the test of Natural Calcium Carbonate and returned the samples to the Custom authorities. The ICD-Loni again sent the samples of Natural Calcium Carbonate to CRCL Delhi vide test Memo No. 259 and 260 both dated 11-9-2013 but this time to CRCL returned the samples with out testing with their remark on the face of the Test Memo that FOR THE WANT OF REQUIRED FACILITIES, THIS LABORATORY IS NOT ABLE TO ANALYSE THE SAMPLE OF CALCITE POWDER (UNCOATED) PRESENTLY. The samples were then sent for testing to Indian Bureau of Mines, Nagpur from ICD-Loni for similar product. However, Indian Bureau of Mines also expressed their inability to test the samples due to lack of certain testing equipments with them and returned back the samples to the customs authorities. In a reply under RTI Act, given to one of appellant business colleague, where in they sought details of the equipments/machines installed/purchased by CRCL after 13-9-2013 (i.e. after the date when CRCL returned the samples without testing on account of non possession of equipments) for testing samples of Calcite Powder/Natural Calcium Carbonate. The CRCL vide letter dated 25-7-2014 stating that:- No new equipments/machines have been installed/purchased specifically for testing the sample of calcite powder/calcium carbonate after 13-9-2013. On account of incapability of conducting test of subject product by CRCL Delhi and Indian Bureau of Mines, Customs staff at ICD-Loni started sending samples to a NABL accredited Lab namely Spectro Analytical Labs Limited. Okhla New Delhi. The samples of the appellant were sent to Spectro Analytical Labs Ltd., New Delhi from IDC-Loni due to refusal of CRCL for testing of the said samples of same commodity i.e. Chalk Powder. Accordingly, Spectro Analytical Labs Ltd. replied to all the 10 queries enquired by Customs, ICD-Loni in their Test Memo including those mentioned at serial No. 9 & 10 of the Test Memo and categorically distinguished the crystalline structure of the samples by using XRD and SEM and identified the sample as Natural Uncoated Ground Calcium Carbonate. The ICD-Loni, again sent samples for testing to CRCL despite the fact that CRCL, New Delhi was not equipped with testing equipments to test the samples and even the request of the department for testing was earlier turned down by CRCL, New Delhi. The Test Memo No. 112 dated 24-3-2014 contained 10 queries, similar to the earlier Test Memos sent to the NABL accredited laboratories. Queries mentioned at Serial No. 9 and 10 of the Test Memo, are reproduced hereunder:-