2019-TIOL-NEWS-191 Part 2, Dated: Tuesday, August 13, 2019

ST - Commissioner disallowed the CENVAT Credit availed and utilized of the Service Tax on the premium paid against deposit insurance to DICGC by the noticee to the extent of Rs.30,10,85,494/-, however, dropped the demand for the extended period of limitation amounting to Rs.10,27,75,834/- - Revenue in appeal before CESTAT.

Held: In the asseesses own case, Tribunal had held that CENVAT Credit of the Service Tax on the premium paid against deposit insurance to DICGC is inadmissible, however, is was observed that the issue involved since is pure question of law, imposition of penalty is unwarranted - Following the said precedent, Bench is of the view that when the issue is of interpretation of law and all the facts were within the knowledge of the department being disclosed to the Department, extended period of limitation cannot be invoked alleging suppression, mis-declaration etc. - Revenue's appeal, being devoid of merit, is rejected: CESTAT [para 5, 6]

ST - Copyright owners have assigned the right in copyright to the appellant, a society registered under the Copyright Act - Appellant society is thus administering the right of owner assigned to it as if it is the owner of the copyright by issuance of the license for utilization of the copyrighted material They, in terms of section 34 of the Copyright Act, collect the fees in pursuance of the licenses issued by it under Section 30 to the users of the copyrighted material and share the same with the owner of copyright after deducting its expense Revenue viewed that the service so rendered by appellants appeared to be in the nature of facilities or advantages extended to their members by way of privilege of conducting their business of licensing of copyright and is, therefore, chargeable to service tax under Club or Association Services appeal to CESTAT.

Held: There is no dispute about the fact that the issue under consideration was subject matter in appeal earlier filed by the appellant against order of the Commissioner confirming the demand against the appellant on the same grounds for earlier period - The Appeal filed by the Appellants against the order of Commissioner for earlier period has been allowed by the Tribunal - 2017-TIOL-1070-CESTAT-MUM - Appellants are rendering "Copyright Services" and in fact they are paying service tax under that category - For payment of the service tax, entire amount collected by the appellants from the users is taken for determination of the taxable value and service tax is discharged on that - Having done so, Bench does not see any merits in the demand of service tax under the category of "Club or Association Services" impugned order set aside and appeals allowed: CESTAT [para 5.2, 5.6, 6]

ST - Appellants are engaged in providing various services viz. Erection, Commissioning, Operating, Training, Drawing, Civil Engineering etc. which the Department alleged were correctly classifiable under the category of 'Consulting Engineer' services - demand issued for recovery of service tax of Rs.15,94,80,750/- for the period 1997-98 to 2000-01 and same is confirmed by Commissioner along with penalty and interest - appeal to CESTAT.

Held: AR has contended that copies of agreement have never been produced before the Adjudicating authority in response to the request of the Department and, therefore, the Adjudicating authority could not analyse these agreements and arrive at the finding that the services rendered by the Appellant would fall under the scope of 'consulting engineer' service or otherwise - Bench opines that it is prudent to remand the matter to the Adjudicating authority to analyse the agreements that are now produced before this forum and further copies of the agreements that would be produced during de-novo proceedings - appeal is allowed by way of remand - denovo proceedings to be completed, as far as practicable, within four months: CESTAT [para 6 to 8]

ST - The applicant has submitted that the Tribunal Order has a mistake apparent in the sense that despite the assessee provided sufficient evidence to prove reasonable grounds which barred him to file the appeal in time, still the order recites about having no evidence in this respect - It is impressed upon that applications as attached with application praying for condonation of delay would have been considered, there has been a sufficient reason for the delay to have been condoned - There is an apparent and admitted delay of almost six years since the date of order under challenge till the filing of impugned appeal - This is an apparent fact that no application for condonation of delay was filed by applicant till it was ordered by Tribunal on 9th November, 2017 - The said condonation application has been dismissed vide the order for which the rectification has been prayed for - Thus, it has specifically been observed by Tribunal at that time that the impugned order was sent to applicant, through registered post, on 5th April, 2011 - The possibility of those letters to have been issued as an intentional strategy to seek condonation cannot be ruled out - There is no apparent error on record as is alleged - The document as annexed on the paper book, shows that it was registered with the receipt of Acknowledgement Due - The application stands rejected: CESTAT

ST - Assessee is engaged in providing "Renting of Immovable Property Services" who have rented out/leased out mandi shops in mandi premises to various firms and businessmen and received certain amount on account of rent, but they have neither obtained Service Tax Registration nor paid service tax leviable on account of rent for let out shops - A SCN was served proposing recovery as service tax on amount of rent received during 2008-09 to 2012-13 alongwith interest at appropriate rate and proportionate penalty - The assessee’s status as an authority created under Rajasthan State enactment is not in dispute - Their overall functions and the activities were regulated by said enactment and the rules made thereunder is also an admitted fact - The assessee strongly pleaded that they are allotting land/shops to various traders in furtherance of their statutory functions for promoting welfare of agriculturists - The claim of assessee that the allotment of shop or land to the traders cannot be considered as "renting of immovable property" is not tenable - It is clear that the assessee, being an Agricultural Produce Marketing Committee, is excluded from tax liability - Services relating to agricultural produce by way of storage or warehousing are in the negative list - The assessee has admittedly rented out/ leased out mandi shops in mandi premises but to various firms and businessmen against consideration - Same being out of the scope of 66D(iv) and (vii), the assessee is held liable to pay service tax - No infirmity found in the Order under challenge as far as the confirmation of demand alongwith the order of appropriation of amount as was deposited by assessee under VESC Scheme is concerned - For non-payment of Service Tax under this tax entry, special provision was made under Section 80(2) to waive the penalties - Considering the status of assessee as a Government Organisation, the ingredients for invoking demand for extended period are not present in present case - Accordingly, the demands raised shall be restricted to normal period only - On the same reasons, penalties imposed on assessee are also set aside: CESTAT

Service Tax - Assessee is registered under category of services, namely, Construction Services of other than Residential Complexes, including Commercial/Industrial or Civil Structures and Works Contract Services - During audit, it was noticed that the assessee had taken CENVAT credit on the strength of invoices issued by service providers who are not registered with Department - Therefore, a SCN was issued demanding inadmissible CENVAT credit along with interest and imposition of penalty.

Held: The impugned order is contrary to the SCN as well as the O-I-O because in the O-I-O, the issue of Rule 9(bb) was set aside whereas the Commissioner (A) has relied upon Rule 9(bb) and denied the credit which is beyond the SCN - Further, the provision of supplementary invoice is not applicable in the present case because in the present case, only invoices were issued and not the supplementary invoices - In the case of Kyocera Wireless (India) Pvt. Ltd. - 2016-TIOL-2596-HC-KAR-ST it was held that registration with the Department not a pre-requisite for claiming credit - The impugned order is not sustainable in law: CESTAT

CX - Respondent cleared goods on 'stock transfer' from their factory at Taloja to their depot at Roorkee before sale to their customers and had sought recourse to 'provisional assessment' on the ground that it would not be possible to ascertain the assessable value as various discounts, on account of bulk purchase, trade discount and prompt payment, would not be known at the time of clearance from the factory - Revenue challenges the impugned order passed by Commissioner(A) for having approved the adoption of transaction value to finalise the 'provisional assessment' of goods sold at the depots instead of ascertainment under rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.

Held: Respondent was unable to determine the transaction value at the time and place of removal as a sale, that conforms to section 4 (1)(a) of Central Excise Act, 1944 was yet to occur - The discounts that were intended to be granted to the buyer at the depot was known at the time and place of removal itself from the factory; however, the identity of the buyer, quantity sold and consideration, being an event of the future, could not be evidenced as invoice value at the time of removal to itself, hence, the recourse to provisional assessment - Had there been a sale at the time and place of removal, these very discounts would have been eligible for abatement to arrive at the assessable value - There is, therefore, no flaw in the findings of both the lower authorities insofar as the goods sold from the depot are concerned Revenue appeal dismissed moreover, rule 7 of CER, 2002 prescribes an outer time limit of six months for such finalisation which may be extended by the competent authority - Should be goods remain unsold beyond such statutory limit, the absence of a transaction value from the depot would bring the impugned goods within the ambit of section 4 (1)(b) of Central Excise Act, 1944 and rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2002 - Bench, accordingly, modifies the order of the first appellate authority to this extent: CESTAT [para 9, 10]

2019-TIOL-2281-CESTAT-BANG

Hothur Steels Survey Vs CCT & CE

CX - The assessee is engaged in manufacture of sponge iron and are availing CENVAT credit facility under CCR, 2004 - The assessee is also manufacturing electricity in his factory for consumption within the factory and has exported/sold excess electricity produced - A SCN was issued demanding an amount equal to 6% of sale of electricity sold for the period from June 2010 to February 2012 along with interest and penalty - The issue is no more res integra and has been settled in favour of assessee by various decisions relied upon by assessee - This issue has been considered by this Tribunal in case of Venkateshwara Power Project Ltd. & Ors. - 2019-TIOL-289-CESTAT-BANG - The demand of 6% of value of electricity is not sustainable in law and therefore, same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2019-TIOL-2280-CESTAT-DEL

Lucky Tobacco Company Pvt Ltd Vs CCE & C

CX - M/s LTCPL and others have filed appeals against the impugned order confirming the demand of duty for alleged clandestine manufacture and clearance along with interest and equivalent amount of penalty on LTCPL - Shri R.B. Shukla and Shri Bharat Patel, both Directors of LTCPL are in appeal against Penalty on each of them for alleged violations - Shri Mohammad Hassan Hashmi, Commercial Manager and T.K. Ghosh Technical Head, both employees of LTCPL are in appeal against penalty on each of them for alleged abatement - Shri Murlidhar Ojha, Supervisor and Rizwan Khan Factory In charge, both employees of LTCPL are in appeal against penalty for alleged abatement - As regard to alleged factory stock difference and its removal, the factory was visited by a team of as many as 12 officers, who also resumed a reconciliation register on same day, under the same panchnama, prepared in presence of security guards of LTCPL - We further note there are no adverse remarks regarding stocks contained in the said panchnama and the allegations of shortages and excess have arisen vide reconciliation chart as late as on 04/04/2014, when Shri RB Shukla, Director LTCPL was asked to explain the differences shown, upon comparison of panchnama stock inventory with RG-1 register - In absence of any action on shortage / excess stock and in absence of any adverse observation or action by visiting team, it is difficult to understand as to how revenue could score a point seeking an explanation on 4/4/2014 and for which LTCPL representatives could have been called on 08/06/2010 itself - Furthermore authenticity of the reconciliation is doubtful where there are contentions that loose goods (unfinished) were counted as finished goods in absence of LTCPL representatives and comparision of same with RG-1 Register is untenable - There is a mention in Panchnama about the paper seal dated 7/6/2010, signed by an officer and pasted on the main gate, indicating that the factory was still under physical supervision - On 8/6/2010 also, same officer is a part of the visiting team - Allegations of unaccounted removals from factory, sealed and operating under departmental supervision cannot stand and an uncorroborated and vague statement of Shri R. B. Shukla does not come to help of revenue in this regard - Duty referred in Annexure –B to notice, cannot be demanded or confirmed.

As regard the demand of duty on the basis of Railway Receipts, it is necessary to examine the corroborative evidences from the stage of purchase and consumption of raw materials to manufacture of excisable goods, its transportation to consignee end, of railway booking, Statement of persons who booked the consignments and statement of railway authorities regarding their knowledge of the nature of consignments - Except for an allegation on the printer of packing materials for clandestine printing of packing material, there are no evidences for manufacture of huge quantities of Cigarettes, referred to and calculated on per RR Basis - Thus a total of 703,92,000 Cigarettes alleged to have been manufactured and cleared by LTCPL under such RRs - Though there are no quantification of raw materials required to manufacture such quantities, a sizable quantity of Cut Tobacco Cigarette Papers, PCT, Filter Rod, Aluminum Foil, BOPP Film, TOR, Shell, Slide, Gray wrapper, CFC, Masking Tape, Fevicol, etc would be required to be purchased and consumed - Admittedly none of the documents was recovered from the premises of LTCPL - It is also not the case of the Revenue that parcel agents maintained these Note Books under the instructions of LTCPL - These Note Books were not in the handwriting of any of the persons of LTCPL or its accountant or clerk or any employee - Thus the document upon which the SCN has placed strong reliance has no probative value - Merely because the document have been produced during investigation, it does not establish its probative value - The Supreme Court in case of Bareilly Electricity Supply has held that mere production of document does not amount to proof - No primary evidence has been produced by the Revenue to show that LTCPL has effected sale of such huge quantities of Cigarettes - There is no tangible evidence of LTCPL having actually produced alleged quantities of cigarettes out of non-duty paid or unaccounted raw materials - No transporter's documents have been seized or produced by the Department to show transport of cigarettes from factory to Bhopal Station, and thus the nexus of the RRs and LTCPL Factory is apparently absent - The only basis of the demand is the number of bundles contained in RRs multiplied with assumed quantities - Even if the figures of bundles in the few seized documents tally, that by itself cannot prove clandestine manufacture and clearance, the tests for which have been adequately explained The documents in question have not been resumed from LTCPLS premises - Therefore, the present demand, which has been confirmed by the impugned order, is not based on evidence, which, as this Tribunal has repeatedly emphasized in cases of clandestine manufacture and clearance, would justify a finding against the LTCPL - Inferential or conjectural conclusions cannot be arrived at in such cases, as has been done in the present demand, merely based on Railway Receipts and vague records - Unless there is conclusive evidence that LTCPL did actually manufacture such cigarettes and clandestinely cleared them without payment of duty, liability cannot be fastened on LTCPL on the basis of conjectures and surmises, as Supreme Court emphatically held in In Oudh Sugar Mills Ltd - 2002-TIOL-307-SC-CX-CB.

There is no evidence to establish manufacture and clandestine removal of alleged quantities by LTCPL on the basis of which demand of Rs. 657,50,888/- could sustain - Impugned order is therefore set aside - Consequently the penalties imposed upon the LTCPL and other appellants are also set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2019-TIOL-2279-CESTAT-ALL

Shree Durga Laghu Udyog Vs CCE

CX - The assessee is engaged in manufacture of thinner and fuel oil and availing the benefit of small scale exemption Notfn - As per assessee, as they were also doing some trading activities, they did not realize that their manufactured goods clearance had exceeded the exemption limit provided in the small scale Notfn - There is no dispute about the fact that the assessee on account of crossing exemption limit available in terms of small scale Notification, is required to pay the duty - It is seen that after the initial threshold exemption in terms of small scale exemption Notfn 8/2003, assessee was entitled to concessional rate of duty as also to the Cenvat credit of duty paid on the inputs - As no duty was being paid by assessee under the impression that they were still within the exemption limit, no credit was being availed by them - However, when subsequently demand was raised against them and confirmed, they staked their claim to the Cenvat credit of duty paid on the inputs, which claim was accepted by Commissioner(A) - As such the assessee became entitled to the credit - However, inasmuch as by that time, assessee’s factory was closed and they were not in a position to use the said credit for payment of duty on future clearances, they approached the Revenue for refund of duty paid in cash and to adjust the same against the Cenvat credit to which they became entitled to in terms of order of Commissioner(A) - Such request of assessee stands denied by Assistant Commissioner on the ground of non-availability of TR-6 challan and by Commissioner(A) on the ground that the same amounts to refund of Cenvat credit, which is not permissible under the law - As regards the non-availability of TR-6 Challan, right from the beginning it has been the Revenue’s own case that the duty was deposited by assessee by way of TR-6 Challan - This fact also stands mentioned in various orders of lower authorities - As such it is not disputed that the duty was paid by TR-6 Challan in cash and as such even if the original copy of the same is not available with assessee, the said fact cannot be adopted as a reason for denial of refund to the assessee - Assessee submits that the credit available to them in terms of said order of appellate authority was higher than the duty paid by them in cash - He also fairly undertakes not to claim the refund of the excess credit which is left after adjustment of the same to the extent of duty so paid by them in cash: CESTAT

- Appeal disposed of: ALLAHABAD CESTAT

Recovery of export benefits given under Incentive and Reward Schemes under Chapter 3 of FTP on re-import of exported goods

Cus - Suspension of Customs broker licence - relationship of a custom broker with a licensing authority is one of 'near employment' as a facility for smooth clearance of cargo on behalf of importers/exporters who may be at other locations - Unlike tax disputes, the consequence of detriment under the Licensing Regulations has a bearing on the lives of the brokers as well as their dependents - There can be no doubt that suspension for long periods of time or disproportionate penalties impact these persons - It is in acknowledgement of the criticality of expeditious action that the Regulations contemplate prescription of timeline, without which an atmosphere of lack of accountability would pervade the entire exercise - it is seen that the gap between the original order of suspension on 12th July 2018 and confirmation of the said suspension is close to two months - The Regulations prescribe that the offer and completion, of post decisional process be limited to 15 days from the date of the first suspension - Authorised Representative is unable to assure us that the proceedings under regulation 19 of Customs Broker Licensing Regulation, 2018 would commence in the near future - It would appear that either the evidence required to sustain the proceedings is not available or that the role of the customs broker may not have been so critical in the transaction to fraudulently claim the drawback - cause of justice cannot be further enabled except by an immediate revocation of the suspension and reinstatement of the licence - appeal allowed: CESTAT [para 5, 6, 7]

Cus - DEPB scheme - allegation is that the value of exported goods was inordinately high - exports were allowed provisionally - original authority confiscated the goods while allowing these to be redeemed on payment of fine of Rs 3,00,000/- and the value thereof was re-determined at a fraction of the declared value with concomitant reduction of entitlement under Duty Entitlement Pass Book scheme - penalties also imposed - appeal to CESTAT.

Held: There is no evidence on record to show that the appellant had not been in receipt of the amount transacted for the goods which could, then, have had a bearing on redetermining of transaction value - Reliance placed on ascertainment from local market does not in any way concord with the requirements of section 14 of Customs Act, 1962 which benchmarks time and place of exportation as critical to acceptance of a value - Furthermore, order restricting the entitlement to benefits of the scheme in the Foreign Trade Policy has been compounded with an order for recovery of excess eligibility arising therefrom - The scrip does not conform any privilege; it prescribes a ceiling of eligibility for duty free import that is within the exclusive jurisdiction of the licensing authority - It is the utilisation of the scrip that triggers exemption from duty and, to the extent of ineligibility, arising from overvaluation of exports, can be proceeded against for recovery of the duty unpaid in consequence under section 28 of Customs Act, 1962 - Hence, the appropriate course of action would have been to identify the bills of entry associated with the utilisation of the scrips emerging from such overvaluation and subject those to proceedings under section 28 of Customs Act, 1962 - In the absence of such proceedings, a bland order of recovery is without legal authority as it does not have sanctity of law - While the market value of the impugned goods appear to have been ascertained, it cannot, by any stretch of law, be adopted for the purpose of assessment under section 14 of Customs Act, 1962 - order of confiscation and imposition of penalties set aside - appeals allowed: CESTAT [para 6 to 8]

Cus - Penalty of Rs 20,00,000/- on the Managing Director and Rs 15,00,000/- on the General Manager is assailed before the CESTAT - Importer, though not in appeal, was a unit established in the SEEPZ, an Export Processing Zone operating under the Foreign Trade Policy of the Government of India, and had been permitted by the competent authority to trade and repack imported goods - importer was charged with having imported goods, declared as 'integrated circuit chips' of various specifications, which, upon taking up for examination, was found to contain some pieces that were dummy, fake or overvalued - It is contended that the Managing Director was not connected with the day to day transactions and certainly not of the import; that none of the statements recorded have cast any aspersions on his role; that the scheme of Export Processing Zones, requiring units to obtain approval as 'private bonded warehouses' which were operated under 'double lock', precludes any misuse of imported goods; that no benefit would have accrued to him from such imports; that insofar as the role of General Manager was concerned, the appellant was first made aware of the discrepancy only after examination of the consignment; that the rigour of monitoring and control embodied in the scheme was not amenable to any wrongful use of imported goods and that, as an employee, she did not stand to derive any benefit.

Held: 'Double lock bond' regulated the deployment of imported goods in the operations of the unit and ensured that such privileged goods was utilized exclusively for the intended purpose - In the present instance, it is not anybody's case that the goods have been diverted or intended to be; on the contrary, it would appear that the claim of the appellants of lack of motive was discarded on the finding of benefits derived from transacting in foreign exchange - culmination of penalty u/s 112 of Customs Act, 1962 commenced from confiscation of the goods as a consequence of admitted mis-declaration in which the motives are not relevant - pleas of the appellants do not justify any alteration of the findings in the impugned order - however, as the benefits that may have accrued to the appellants through misuse of foreign exchange transactions was brought to nought and as the misdemeanour is limited to the act of mis-declaration, the penalty on Managing Director is reduced to Rs 5,00,000 and that on the General Manager to Rs 1,00,000 - Appeal partly allowed: CESTAT [para 7, 8]

Cus - Role of the appellant was the submission of bill of entry - in the absence of any investigation that implicates the appellant or any other record of involvement or fore-knowledge of the value and description of goods, invoking of s.112 of Customs Act is questionable - impugned order imposing penalty on appellant CHA is set aside and appeal is allowed: CESTAT [para 4, 5]

Cus - Customs duty demand on imported POY - duty on finished goods (PTY) has already been demanded under the proviso to Section 3(1) of the CE Act, on the ground that the same did not reach the premises of EOUs and were diverted in DTA - Demand on raw material, therefore, cannot be sustained in view of duty demand being confirmed on the final products cleared clandestinely - In other words, once duty has been demanded on the finished goods cleared in DTA, no duty demand can be made on the raw material: CESTAT [para 6, 7]

Cus - Confiscation of POY - Bench is of the view that the same is not liable for confiscation, since the conditions of the notification 53/97-Cus. dated 03.06.1997 has not been contravened - Material available in the case record proves the fact that the POY were used for the intended purpose and there was no contravention of post import condition - Even otherwise, the imported POY was not available for confiscation at the time of initiation of show cause proceedings, and as such, in view of the judgment of the Bombay High Court in the case of Finesse Creation Inc. - 2009-TIOL-655-HC-MUM-CUS no redemption fine can be imposed in the absence of goods being available for confiscation - impugned order set aside and appeals allowed with consequential relief: CESTAT [para 6.1, 7, 8]

Cus - Valuation - Canalization charges paid by the appellants to M/s. IOCL are includable in the assessable value of imports in view of the apex court decision in Hyderabad Industries Ltd . - 2002-TIOL-31-SC-CUS-LB : CESTAT [para 6.3]

Cus - Valuation - All the assessments are to be done on the basis of shore tank quantity only - Supreme Court in the case of Mangalore Refinery & Petroleum - 2015-TIOL-199-SC-CUS followed: CESTAT [para 6.1]

Cus - Issue of automatic grant of refund on finalization of assessments; the issue of non-applicability of unjust enrichment and the non-applicability of interest in the case of provisional assessments - Issues being a question of law the appellants have a right to raise the issue at Tribunal level even if the issue was not taken up by the appellant before the original or appellate authority - However, for a proper appreciation of the facts and for computation of the refund view to the appellants the matter needs to go back to the original authority - Matter remanded for decision by the adjudicating authority within a period of three months: CESTAT [para 6.4, 7]

Cus - The assessee-company exports Iron Ore Fines - During the relevant period, it filed shipping bills for 41308 MT of Iron Ore Fines declaring Iron content as 61% - During the relevant period, Iron Ore Fines attracted export duty of Rs 300/- per MT, but if the Iron content is less than or equal to 62%, then exemption is allowed in excess of Rs 50/- per MT as per Notfn No 62/2007-Cus - The assessee declared the Iron content in its Iron Ore Fines as being below 62% - Samples were drawn and sent for testing, whereupon the report declared Iron content as 62.91% - The assessee as well as the buyer of the Iron Ore got the Iron tested on their own, whereupon the Iron content was found to be less than 62% - Both independent reports indicated that Iron content was determined on dry basis after drying the samples - Upon export, the assessee paid Export duty of Rs 50/- per MT - As the Chemical Examiner's report showed Iron content of 62.91%, the exporter was advised to pay differential duty with interest - On assessment, demand for differential duty was confirmed with interest - Later, the Tribunal directed that a copy of the test report be forwarded to the assessee - Hence the present appeal.

Held: The present case is unusual in the sense that there are three test reports, indicating differing levels of Iron content - None of the three reports are perfect - The test reports produced by the assessee are detailed and elaborate & indicate Iron content of below 62% - However, such samples were collected behind the back of the Customs officers - This raises doubts regarding the drawing of samples - Test reports cannot be relied upon unless the samples were drawn authentically from the export goods - In this respect, the only authentic samples which was drawn was sent to the Chief Examiner because it was drawn in presence of Customs officers and the exporter & was signed by both parties - Besides, as held by the Apex Court in Reliance Cellulose Products Limited vs. CCE, Hyderabad it was held that the test report of the Chief Examiner or Chief Chemist cannot be brushed aside in favor of reports given by private persons - However, the Chemical Examiner's report too is very cryptic and does not indicate how the samples were tested or whether the percentage of Iron content indicated was on dry basis or on wet basis - The CBEC Circular dt. 17.02.2012 expressly instructs the Iron content be reckoned on wet MT basis - The Chemical Examiner's report has several inconsistencies and it is difficult to conclude that testing was done on wet MT basis - Hence the authenticity of this report is doubtful - Thus none of the three test reports can be relied upon - As the Revenue was unable to sufficiently establish that the assessee's declaration of the Iron content being below 62% is incorrect, the demands for differential duty merit being quashed: CESTAT