Judgment:
Per: Dr. Chittaranjan Satapathy,
Heard both sides at length on 30.09.09 and again on 12.10.09. Shri M.V. Raman, Ld. Advocate, appearing for the appellants states that the impugned goods have not been allowed to be exported holding the same to be non-alloy steel on the basis of certificate given by the National Metallurgical Laboratories (NML). The Ld. Advocate states that the appellants had themselves got the goods tested by M/s. KIDAO Laboratories, an authorized testing and certification agency as per which the impugned goods contain more than minimum required percentage of Boron exceeding 0.0008%. He also states that during cross-examination, the scientist from NML mentioned about uncertainty in the Boron analysis and mentioned that it may vary upto 0.0011% and that the uncertainty is 0.0005% in NML. The Ld. Advocate states that the certification done by NML cannot be relied upon.
2. Heard Shri T.H. Rao, Ld. SDR, appearing for the department. He states that NML is the recognized Government laboratory for testing of metallurgical samples. The appellants have not specifically challenged the test report nor have they asked for retesting of the samples. Ld. SDR also states that out of 82 samples drawn and tested, 47 samples do not conform to the standard laid down in the HSN for classifying the declared goods as alloy steel. He also states that in case retesting is ordered, samples should be freshly drawn as the impugned goods are still lying in customs area.
3. After going through contradictory test reports from KIDAO and NML including the record of cross-examination of the NML scientist who speaks of calibration done in the testing equipment subsequently, we feel it is necessary that the samples should be got retested in NML. Accordingly, with the consent of both sides, we set aside the impugned order and remand the matter to the original authority for re-drawing of samples and re-testing of the samples in NML, and thereafter, re-adjudication of the matter and passing of fresh orders. The appellants shall be given adequate opportunity of hearing as well as opportunity for being present during redrawing of samples.
4. Both the appeals are allowed by way of remand in the above terms.