Re-testing of Samples
[Ref:
30-CBEC dated 18 July 2017]
Sub:
Detailed guidelines for re-testing of samples
World
Trade Organization (WTO) negotiated Trade Facilitation Agreement (TFA), which
aims at simplifying the trade processes and bringing down barriers to trade has
come into force w.e.f 22nd
February, 2017. India is a signatory
to this agreement.
2) India has placed a number of trade related measures
negotiated under the TFA in Category A. Article 5.3.l envisages granting an opportunity
for a second test in case the first test result of a sample taken upon arrival of
goods declared for importation shows an adverse finding. Further Article 5.3.3 makes
it obligatory to consider the result of the second test, if any, for the
release and clearance of goods, and, if appropriate, may accept the results of such
test. The aforementioned Articles have been placed in category A. In order to have
uniformity in approach among the field formations with regard to re-testing of samples,
the following procedure is prescribed:
a. Customs
officers may draw the samples from import consignments for testing in case of
consignments wherever needed. The results of all test reports, adverse or otherwise,
shall be communicated to the importer or his authorized representative/ Customs
Broker immediately on its receipt.
b. In case
the importer or his agent intends to request the Additional/ Joint Commissioner
of Customs for a re-rest, then the same shall be made in writing to the said officer
within a period of ten days from the receipt of the communication of the test results
of the first test. Customs officers may take a reasoned view in case the importer
or his authorized representative Customs Broker is unable to do so for reasons beyond
his control.
c. Where the
Additional/Joint Commissioner of Customs grants an opportunity for a second test,
he must clearly indicate in writing the name and address of the laboratory/
institution where the second test can be carried out. Such referral for
re-testing may be made only after being reasonably sure that the desired re-testing
facilities exist at the laboratory/ institution.
d. Re-test
should be made only on the remnants of the samples originally tested or on duplicate
representative sealed samples in the custody of the Customs. Further, to avoid delays,
samples for second tests shall be marked as "immediate" before sending
to the laboratory. In a case it may so happen that fresh samples have to be drawn,
then such sampling should be done in the presence of the importer or his representative/customs
broker.
e. The
requests for re-test of samples on the ground that the original sample was not
representative should be entertained only if the consignment is still in Customs
control. At the time of drawing the samples, the importer or his representative
shall be present and certify that the samples drawn are representative.
f. The competent
authority shall consider the results of the re-test without prejudice to the results
of the first test. In case there is a variation in the results of the first test
and the re-test, the competent authority shall take the decision relying upon either
of the tests specifying the grounds in writing for the decision so taken. In case
the competent authority is unable to decide whether to rely upon the first or the
re-test results, then it may order a second re-test provided the consignment is
still within the customs control. However, this option should not be resorted to
in every case of variation between the first test and re-test results.
g. The
facility of re-testing, is a trade facilitation measure, which should generally
not be denied in the ordinary
course. However, there might arise circumstances where the customs officer is
constrained to deny the re-testing facility. Board expects that such denial would
be occasional and on reasonable grounds to be recorded in writing.
h. Where the re-testing
procedure is done at the instance of the department .instead of the importer, the
above procedure shall be followed mutatis mutandis.
3) Difficulties, if any, in implementation of this
circular, should be brought to the notice of the Board.
F. No. 450/15/2017-Cus
TV