1987 (10) TMI 198 - AT - Central Excise

Summary

Issues Involved:
1. Classification and duty rate of yarn based on fibre content.
2. Validity of test results and retesting procedures.
3. Applicability of test results to entire lot.
4. Time-bar defense.
5. Imposition of penalty.

Summary:

1. Classification and Duty Rate of Yarn Based on Fibre Content:
Samples were drawn on 13-2-1980 and 29-10-1980 from M/s. Kiran Spinning Mills' blend of fibres intended for yarn production. The approved classification lists indicated the yarn should contain 15% non-cellulosic fibres and 85% cellulosic fibres. However, tests revealed the non-cellulosic fibre content exceeded one-sixth by weight, necessitating a higher duty rate. Notices were issued for recovery of the higher duty, and the Assistant Collector confirmed the duty demands and imposed a penalty in one case. Appeals against these orders were dismissed by the Collector (Appeals).

2. Validity of Test Results and Retesting Procedures:
For the sample drawn on 13-2-1980, the appellants were informed of the excessive polyester content but not the exact percentage. They requested this information and a potential retest, which was ignored until a show cause notice was issued. The Assistant Collector rejected the retest request as untimely. For the sample drawn on 29-10-1980, the appellants requested a retest, which was eventually conducted, confirming the excessive polyester content. The appellants argued the testing method was improper, but the Tribunal found the Department was not obligated to conduct a third test.

3. Applicability of Test Results to Entire Lot:
The appellants contended that the test results should apply only to the yarn spun from the blend at the time of sampling, not the entire lot. The Assistant Collector initially accepted that the entire lot could not be blended at once but later demanded duty for the entire lot. The Tribunal agreed with the appellants, citing a similar case (Standard Woollen Mills), and concluded the test results should apply only to the yarn spun from the blend at the time of sampling.

4. Time-Bar Defense:
The appellants argued the demand was time-barred. However, the Tribunal found that since the yarn was not in accordance with the approved classification list, the larger period of limitation applied, rejecting the time-bar defense.

5. Imposition of Penalty:
The Tribunal noted the marginal variation in fibre content and accepted the appellants' explanation of possible oversight in blending. It concluded there was no deliberate evasion of duty and set aside the penalty.

Conclusion:
- Appeal No. 1330 of 83: Allowed, orders of lower authorities set aside.
- Appeal No. 1329 of 83: Allowed to the extent of setting aside the penalty and remitting the matter to the Assistant Collector for quantifying the duty based on the sample drawn on 29-10-1980.