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TMI Blog1988 (4) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2.1974 Inferior Kerosene Tl No. 7 Motor Spirit Tl No. 6 Refined Oil Diesel T.I. 8. (2) 12-12-72 to17-1-73. 14-2-1974 do do Diesel Oil T.I. No. 9. (3) 18-1-73 to 11-2-73 16-1-1974 do do do (4) 17-3-73 to 16-4-73 6-3-1974 do Refined Diesel Oil T.I. 8. Refined Diesel Oil T.I. 8. (5) 25-9-73 to9-10-73 24-5-1974 do Motor Spirit T.I. No. 6 do Collector (Appeals) has rejected the appeals filed before him by the appellants against the Orders-in-Original of the Assistant Collector on the ground that the demands were confirmed on the basis of the test results of the samples drawn from the goods manufactured by the appellants and as such, there was no merit in the appeals. 2. The appellants prayed for introduction of certain additional documents to which no objection was raised by the learned J.D.R. for the respondent. Additional documents were, therefore, allowed to be introduced as evidence. 3. Arguing for the appellants Shri A.F. Patel, learned Advocate has stated that Oil and Natural Gas Commission obtained natural gas from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory of the appellants as Refinery under Rule 140 of the Central Excise Rules, although they applied for the same. 4. The next contention of the learned Advocate is that samples were drawn on different dates and the same were tested, but complete test reports were not furnished to the appellants. Only extracts from the test reports were forwarded to them. Samples were also retested by the Chief Chemist. There was wide variation between the results found on the original test and the retest by the Chief Chemist. The test reports are not, therefore, reliable and classification cannot be done on the basis of the same. He has relied on the decision of Bombay High Court reported in 1983 ELT 2200 in which it was held that when the sample showed two results it was not permissible for the Department to select the one which suits the Department. In this connection, the learned Advocate has drawn our attention to the test results at pages 25, 30, 42, 53, 54, 67, 68, 89 and 98 of the Paper Book filed by the appellants. 5. The learned Advocate has argued that the demands for differential duty were issued under Rule 10 of the Central Excise Rules. He has stated that demands at serial N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other substance, is suitable for use as fuel for internal combustion engines; and (ii) power alcohol, that is to say, ethyl alcohol of any grade (including such alcohol when denatured or otherwise treated), which, either by itself or Inadmixture with any other substance, is suitable for being used as aforesaid. Explanation I. - Mineral Oil means an oil consisting of a single liquid hydrocarbon or a liquid mixture of hydrocarbons (except for associated impurities) derived from petroleum, coal, shale, peat or any other bituminous substance, and includes any similar oil produced by synthesis or otherwise. Explanation II. - Flashing point shall be determined in accordance with the tests specified in this behalf in the rules made under the Petroleum Act, 1934 (30 of 1934)." 7. KEROSENE Kerosene, that is to say, any mineral oil (excluding mineral colza oil and turpentine substitute) which has a flame height of eighteen millimetres or more and is ordinarily used as illuminant in oil burning lamps. Explanation I. - The expression mineral oil has the meaning assigned to it in Explanation I to Item No. 6. Explanation II. - Flame height shall be determined in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D COKE. Date of show cause notice Period Sample drawn on (1)14-2-1974 15-9-1972 to 5-10-1972 15-9-1972 Test results: (i) As per Chemical Examiner, Central Excise, Baroda :- Mineral oil of dark brown colour having flash point below 76 F and boiling point range of 138 C to 242 C (communicated to appellants on 13-2-1973 vide page 25 of paper book). (ii) As per Chief Chemist, Central Revenues Control Laboratory, New Delhi, on re-test of sample :- Dark brown coloured mineral oil: Flash point = 101 F Viscosity by RW.1, Viscometerat 100 F = 27.5 sec. Flame height = 14 mm Bituminous substance % by weight = 0.24% Distillation Range = 141 C to 286 C (communicated to appellants on 22nd February, 1980 vide page 30 of Paper Book) (II)14-2-1974 12-12-1972 to 17-1-1973 12-12-1972 Test results: (i) As per Chemical Examiner, Central Excise, Baroda : Mineral oil of dark brown colour having flash point below 76 F and boiling point range from 120 C to 317 C (communicated to appellants on 29.8.73 vide page 39 of the Paper Book). (ii) As per Chief Chemist, Central Revenues Control Laboratory, New Delhi: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants on 2-6-1979) (ii) As per Chief Chemist on re-test of sample drawn on 31-3-1973 :- Dark brown coloured mineral oil. Flashing point = 87 F Flame height = 16mm Viscosity by R.W.1. Viscometer at 100 F - 26.8 sec. Bituminous substance =0.18% Distillation Range = 138 to 275 C (vide page No. 68 of Paper Book) (communicated to the appellants on 2.6.79) (v) 24.5.74 25.9.73 to 9.10.73 25.9.73 Test results : (i) As per Chemical Examiner, Central Excise, Baroda :- Dark coloured mineral oil. Flashing point below 76 F Distillation Range 130 to 318 C (communicated to appellants on 30.3.74 vide page No. 89 of the Paper Book). (ii) As per Chief Chemist on re-test of sample : Dark brown coloured mineral oil. Flashing point = 99 F Flame height = 14mm Viscosity by R.W.1, Viscometer at 100 F = 27.9. sec. Bituminous substance % by weight = 0.25% Distillation Range = 140 C to 266 C (communicated to appellants in February, 1980 vide page No. 98 of Paper Book). 8. Samples were re-tested by the Chief Chemist at the request of the appellants. They are, therefore, bound by the results of re-test. Having requested for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the period from 25-9-1973 to 9-10-1973 :- Re-test of the sample by Chief Chemist shows flashing point = 99 F and Flame height =14 mm. Accordingly to this test result the goods should be classified under Tariff Item 8 - Refined Diesel Oil and Vaporising Oil. We find that the demands for differential duty were confirmed under the Tariff Items indicated above. The classification has, therefore, been correctly done by the Assistant Collector while confirming the demands. 9. Shri Patel for the appellants has contended that demands in two cases are time-barred. The learned JDR has stated during her arguments that the assessments in all cases were provisional and not final and that the appellants executed B-13 bond under Rule 9-B of the Central Excise Rules. She has also stated that the show cause notices say that the assessment was subject to Chemical Test and not final. The learned Advocate has not controverted the arguments of the learned JDR by producing any materials before us. In the circumstances, the plea of time-bar of the demands in two cases is also rejected. 10. In the light of the above discussions, we do not find any infirmity in the orders of the lower authorities. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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