Belated Testing which may be Affected Over Time Cannot Override Contemporaneous Evidence: CESTAT Rules against CIMFR Reports [Read Order]

The Customs, Excise and Service Tax AppellateTribunal (CESTAT), Chennai Bench, held that belated testing which may be affected over the passage of time cannot override contemporaneous evidence. The CESTAT ruled against the report of the Central Institute of Mining and Fuel Research (CIMFR).

The exemption under SI. No. 68 of Notification No. 21/2002-Cus prescribes two cumulative conditions, that Mean Reflectance (MR) must exceed 0.60 and Crucible Swelling Number (CSN) must be 1 or above. The CIMFR reported a CSN of 0.5 but after more than two years of drawing the samples.

The counsel for the appellant relied upon various cases like Dunlop India Ltd. v. Union of India wherein it was held that classification must be determined based on the condition of goods at the time of import. Additionally, the appellant, M/s. JSW Steel Ltd, contended through TATA Chemicals Ltd. CC (2015) and CCE v. Ballarpur Industries Ltd. (2007) that belated testing which may be affected by passage of time cannot override contemporaneous evidence.

The tribunal observed that there have been no submissions claiming that the samples were preserved in conditions preventing oxidation and held the belated CIMFR report to be arbitrary. CESTAT held that the contemporaneous evidence clearly establishes that both MR and CSN conditions were satisfied at the time of import.

Accordingly, the bench of Vasa Seshagiri Rao (Technical Member) and P. Dinesha (Judicial Member) allowed the appeal on merits as the imported coal satisfied the exemption conditions.

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