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TMI Blog1986 (12) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said yarn by the Appellants as consisting of 70% wool, 15% viscose and 15% nylon and therefore falling under tariff item No. 18 - B(i ) CET. Since the chemical examiner s report disclosed that the yarn was properly classifiable under item 18-B(ii) CET, a show cause notice dated 5.4.1981 was issued charging the appellants with failure to file proper classification list and of ,having cleared the said yarn without payment of proper duty under TI-18-B(ii) CET. Duty calculated at the proper rate on 2931.300 kgs of the said woollen yarn was also demanded thereunder. The appellants sent a reply dated 20.2.1981 challenging the result of chemical analysis and claiming that the yarn spun by them satisfied the requirement of TI-18-B(ii) CET a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms, the Central Board under order dated 29.12.1981 confirmed the duty demand but reduced the penalty to Rs. 10,000-00, accepting the submissions of the appellants that the increase of the nylon contents in the yarn was unintentional. It is against the said order that the appellants preferred the present appeal. 3. We have heard Smt. Archna Wadhwa, Advocate for the appellants and Shri K.C. Sachar for the department. 4. Smt. Wadhwa contended that when, after receipt of the results of the retest, the appellants asked for a further test also the same should have been granted by the department and when the same was declined there has been a failure in following principles of natural justice and for that reason itself the orders are liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piece-meal on several dates and not all on a single occasion and therefore the blending of the different constituent fibres was not on one occasion, leading to spinning therefrom thereafter, but that the fibres were blended on different occassions, depending upon receipts from the customer on several dates, and therefore the department was in error in proceeding on the result of the test as conclusive for the entire lot. In their reply dated 22.6.1981 they had mentioned as would be observed from the blend register in the custody of the department the tops were received in piece-meal and the same were blended piece-meal manner. They had reiterated this contention before the Collector during adjudication. In their appeal to the Board also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 21.7.1980. The supplies thereunder are seen to be as follows: Date Wool tops Nylon tops Viscose tops 8-7-1980 700. kg 208.3 kg 202.8 kg 11-7-1980 324.6 kg 101.7 kg 75.5 kg 14-7-1980 689.1 kg - - 15-7-1980 288.2 kg 92.4 kg 198.9 kg 21-7-1980 - 40.8 kg 9.0 kg 2001.9 kg 443.4 kg 486.4 kg It is thus seen that it was only after receipt on 21.7.1980 also that the total quantity received amounted to 2931.300 kgs. Therefore the sample drawn on 15.7.1980 could certainly not have been representative of this total quantity of 2931.300 kgs. as mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in view of the special circumstances of the case the learned counsel is correct when she contends that the result of analysis of the test sample drawn could not be applied to the entire quantity of yarn spun by the appellant out of the material supplied by the customer but could be applied only to that quantity of the available blend from which the sample was drawn on 15.7.1980. 10. Another reason stated by the Collector for his conclusion, that the test result was to apply to the entire quantity of yarn spun, is that the weight of the nylon tops supplied was more than 1/6th of the total weight of different types of tops supplied. He, therefore, concludes that if this quantity of nylon tops had been blended with the other tops received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of this case support the contention that the result of the test of the sample drawn could be true only with reference to quantity of blended fibre that was available when the sample was drawn and not with reference to quantity already spun into yarn or quantity blended subsequently. 12. Smt. Wadhwa further contended that so far as penalty is concerned the Board should have set aside the entire penalty in view of its own finding that it accepted the appellant s submission that the increased use nylon fibre was unintentional. The Board had found as a question of fact that the appellants had no intention to evade duty by using more of nylon fibre than was permissible under TI 18-B(i), CET. We agree that on this finding the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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