ORDER
P.G. Chacko, Member (J)
1. The appellants in these appeals had imported what was declared as ‘Sulphonated Fish Oil’ and classified under Heading 34.02 of the First Schedule to the Customs Tariff Act. They also claimed the benefit of concessional rate of duty under Customs Notification No. 16/2000. Samples of the goods were drawn and sent to the Department’s chemical laboratory. The Chemical Examiner, after test, reported thus: “Samples of Article 7239 received and tested in the laboratory do not show the presence of Fish Oil in them. The samples on analysis were found to be Sulphonated Fatty Oil and not Sulphonated Fish Oil and each can be considered as fat liquor”. Aggrieved by the test results, the party asked for retest by the Central Revenue Control Laboratory [CRCL], New Delhi. It appears, the remnant samples were sent to that laboratory and, upon chemical analysis, it was reported that Article 7239 was a preparation having composition similar to the one mentioned under HSN Heading 34.03 and, therefore, the item could not be considered as Sulphonated Fish Oil and the same could be used for fat liquoring purpose only. Then the party brought two contra reports, one issued by the Central Leather Research Institute [CLRI] and the other by M/s. S.G.S. India Ltd., both of which certified that the item was composed of Sulphonated Fish Oil. The lower authorities rejected these certificates and chose to go by the Chemical Examiner’s report and the CRCL’s opinion. In the result, the imported goods came to be classified under Heading 34.03 of the Tariff Schedule, which attracted higher duty. Hence the present appeals of the assessees.
2. The learned Counsel for the appellants submits that the lower authorities erred in rejecting the preponderant technical opinion on the goods. It is submitted that, where a majority of the chemical experts certified the goods to be ‘Sulphonated Fish Oil’, it was not open to the Department to rely on the contra opinion of the Chemical Examiner and the CRCL. It is also submitted that, when identical goods was imported in the year 1997, it was accepted by the assessing authority as Sulphonated Fish Oil under Heading 34.02 on the basis of a report of the Chemical Examiner. That report was on Article 7239. The same article was imported subsequently from the same supplier. In the circumstances, the assessing authority ought to have avoided the second test and should have gone by the previous test report in terms of Public Notice No. 71/93 issued by the Customs House. The learned Counsel has also relied on the apex Court’s judgment in Poulose and Mathen v. Collector and the Tribunal’s decision in Super Tech Agro Oils Pvt. Ltd. v. Commissioner . We have heard the learned SDR also, who has reiterated the findings of the learned Commissioner (Appeals).
3. After giving careful consideration to the submissions, we have to reject, at the outset, the learned Counsel’s plea that the assessing authority ought to have gone by the test report pertaining to the previous import. Firstly, the learned Counsel has not produced the Public Notice he referred to. Secondly, the appellants themselves asked for retest by the CRCL.
4. We are also not impressed with the reliance placed by the learned Counsel on the test reports of CLRI and M/s. S.G.S. India Ltd. Apart from the fact that samples for being tested by the above agencies were drawn behind the back of the Department, it is pertinent to note that the findings returned were not enough for the assessing authority to arrive at a decision on the question whether the goods could be classified under Heading 34.02 as Sulphonated Fish Oil or under Heading 34.03 as fat liquor. ‘Sulphonated Fish Oil’ is an item specifically mentioned under one of the sub-headings under Heading 34.02 of the Tariff Schedule. The Heading stands for organic surface-active agents (other than soap), which, according to HSN Notes, are chemically defined compounds, which should meticulously meet the criteria laid down under Chapter Note 3. The said criteria laid down are purely technical and the same are meant to be meticulously followed by any chemical analyst. One of these criteria is that the sample prepared for test should be capable of reducing the surface tension of distilled water to 45 dynes/cm or below. The relevant HSN Note says that, if this criterion is not met, the sample is not an organic surface-active agent and hence shall stand excluded from Heading 34.02. Even the appellants do not have a case that tests were performed in this manner by CLRI or M/s. S.G.S. India Ltd.
5. We shall now revert to the Chemical Examiner. His test report is categorical that the samples cannot be treated as Sulphonated Fish Oil. The Chief Chemist [CRCL], after retest, certified that the samples were only preparations of composition similar to that of the preparations covered by Heading 34.03. This would clearly show that the Department’s chemical laboratories performed the requisite tests to arrive at the composition of these samples, though the test reports do not contain details of the test results. After all, there is a presumption, albeit rebuttable, in favour of the correctness of the test report issued by the Department’s Chemical Examiner. Neither the CLRI’s report nor the other report furnished by the assessee can be considered to have rebutted this presumption inasmuch as, in those reports, there was no indication of any test having been done in terms of Chapter Note 3 ibid.
6. In the case of Poulose and Mathen (supra) cited by the counsel, it was held by the Hon’ble Supreme Court that, where two opinions arose on the classification of a given item within the Departmental domain, that opinion which was favourable to the assessee should be given effect to. This ruling cannot be applied to a situation where different opinions were expressed by different technical experts on a given technical issue outside the Departmental domain. In the second case cited by the learned Counsel, it was held by a learned Member of this Tribunal that, where two laboratory reports differed, the one in favour of the assessee should be followed. We would have considered this proposition, if the contradictory reports in this case had been on samples drawn in the presence of the assessee and the departmental representative. In the present case, as we have already noted, the samples which were sent to CLRI and M/s. S.G.S. India Ltd. were drawn by the assessee themselves behind the back of the Department. On the other hand, the samples which were sent to the departmental laboratory were drawn by Customs officers in the presence of the assessee.
7. In the result, the classification of the item in question shall stand governed by the Chemical Examiner’s report and the Chief Chemist’s opinion. Accordingly, we hold the item to be a preparation classifiable under Heading 34.03. It cannot be classified as Sulphonated Fish Oil under Heading 34.02. The impugned orders are sustained and these appeals are dismissed.
(Dictated and pronounced in open court)