2013 (7) TMI 793 - AT - Central Excise

Testing of goods - Test report of the chemical examiner GR-1, Central Excise & Customs Laboratory, Vadodara merit classification as a manufactured tobacco - Appellant did not accept the test report dated 28.3.08 and clarification given by the chemical examiner GR-1 on 22.4.08, and, had specifically requested the lower authorities vide their letter dated 15.05.08 for retest of the samples - Request was not granted by the lower authorities and they denied the retest without assigning any reason Held that - As per chapter 11 of CBEC manual, paragraphs from 8.8 to 8.13 of the said chapter submits that the retesting is allowed to an assessee if he does not agree with the results of the first test, subject to a condition that the said retest test is sought within 90 days from the date on which first test was conducted - The department should have done a retest to eliminate any misgivings before taking up the adjudication - Non-granting of retesting of the sample would be gross violation of the principles of natural justice Decided in favor of Assessee.

Summary

Issues Involved:
Classification of the appellant product under chapter 24 as manufactured or unmanufactured tobacco.

Detailed Analysis:
The judgment by the Appellate Tribunal CESTAT Ahmedabad dealt with appeals against an order regarding the classification of the appellant product under chapter 24 as manufactured or unmanufactured tobacco. The adjudicating authority had concluded, based on statements and a test report, that the product should be classified as manufactured tobacco, leading to duty demands, confiscation of goods, redemption fines, and penalties. The appellant raised objections to the testing process, requesting a retest of samples, which was denied without reason by the lower authorities. The appellant cited CBEC manual instructions allowing retesting if results are disputed within 90 days. The tribunal noted the lack of reasoning for denying the retest, highlighting provisions in the CBEC manual supporting the appellant's request for retesting. The tribunal found the denial of retesting to be a violation of natural justice, rendering the impugned order unsustainable.

The tribunal, without delving into the case's merits, emphasized the need to address the appellant's request for retesting. Therefore, the impugned order was set aside, and the matter was remitted back to the adjudicating authority for reconsideration after retesting the samples as requested by the appellant. The tribunal stressed the importance of following principles of natural justice post retesting before reaching a conclusion on the issue. Ultimately, all appeals were allowed by way of remand, ensuring a fair process based on the right to retest and principles of natural justice.