2012 (8) TMI 831 - AT - Central Excise

Duty demand - Exemption under Notification No. 31/93-C.E., dated 28-2-1993 - Held that - preventive department of Central Excise drew three samples each from different lots of 210 deniers yarn purportedly manufactured by the appellant. It is also not in dispute that looking into the variance in respect of test report pertaining to three different samples on request of appellant second set of samples were sent for chemical analysis. From the record it is evident that the Chemical Analyst instead of sending test report of second set of samples informed the Department that second test report was at variance with the first report and requested for sending of third set of samples for analysis. It is not explained as to why the test report pertaining to second set of test report was not sent by the Chemical Examiner and why adjudicating authority did not insist on calling for the test report. In the absence of second test report pertaining to second set of samples we are at a loss to make out whether or not as per the second analysis the samples confirmed to the specification of 210 denier yarn with the tolerance limit of /- 4% and was exempt from payment of excise duty under Notification No. 31/93-C.E., dated 28-2-1993. It is obvious that the Department has withheld the second test, therefore, we are inclined to draw an adverse presumption against the Department that had the second test report been produced it would have gone against the Department. Further there is no explanation as to why the third set of sample did not reach the Chemical Examiner - No receipt from the office of Chemical Analyst is made available on record nor is there any evidence to show that the third set of test report was actually dispatched to the office of Chemical Analyst - Decided in favour of assessee.

Summary

Issues:
1. Duty demand confirmation against the appellant.
2. Dispute regarding test reports and chemical analysis.
3. Adjudication of interest and penalty imposition.

Analysis:

1. Duty Demand Confirmation:
The appellant, engaged in manufacturing Polypropylene Multi Filament Yarn (PPMFY), cleared 210 denier yarn without paying excise duty, claiming exemption under Notification No. 31/93-C.E. The Central Excise Department drew samples for testing, which showed variance in denier values. Despite discrepancies, duty demand of Rs. 2,33,293/- was confirmed by the jurisdictional authority. The Commissioner (Appeals) upheld the duty demand but dropped interest and penalty imposition.

2. Dispute Regarding Test Reports and Chemical Analysis:
Multiple test reports from samples drawn showed inconsistencies in denier values. The Chemical Examiner requested a third set of samples for analysis due to discrepancies. However, the report for the third set was never received. The appellant argued that the authorities failed to consider the variance in test reports and did not follow up on obtaining the second test report. The Tribunal noted the absence of the second test report and raised concerns about the missing third set of sample report, casting doubt on the Department's actions.

3. Adjudication of Interest and Penalty Imposition:
The Commissioner (Appeals) dropped the interest and penalty imposed on the appellant but confirmed the duty demand. The appellant challenged the decision, emphasizing the lack of conclusive test reports and the non-receipt of the third sample analysis. The Tribunal, considering the discrepancies and lack of evidence, set aside the impugned order, indicating a failure on the part of the Department to provide necessary documentation and follow proper procedures in confirming the duty demand.

In conclusion, the Tribunal accepted the appeal, setting aside the impugned order due to the unresolved issues surrounding the test reports, lack of follow-up on missing reports, and absence of conclusive evidence to support the duty demand confirmation.