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TMI Blog1989 (6) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ty vide letter dated 2-11-1982. As per blend register, the number of the lot assigned was 15 dated 2-11-1982. The Inspector drew a representative sample in quadruplicate from above-mentioned running lot No. 15 and one of the samples was sent to the Chemical Examiner, New Delhi for the chemical analysis of the composition of the said yarn. The Chemical Examiner reported that the sample is three ply khaki coloured spun yarn composed of 67.1% (sixty-seven decimal one) wool fibres 17.6% (Seventeen decimal six) man made fibres of non-cellulosic origin polyamide (Nylon) and 15.3% (Fifteen decimal three) man made fibres of cellulosic origin. On the basis of this test report, the appellants were charged that the yarn manufactured by the party was dutiable yarn falling under Tariff Item 18-B(ii) and attracted Central Excise duty @ Rs. 18/- per kg. as BED, 15% of BED as A.D. and 10% of BED as SED. As per the blend register, the total Worsted Woollen yarn manufactured from the said lot and cleared was 2122 kgs 100 gms. of dutiable yarn under Tariff Item 18-B(i) involving Central Excise duty of Rs. 47,747.25 P. only (BED Rs. 38,197.80 P.; AED Rs. 5,729.67 P. and SED Rs. 3,819.78 P.) and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad committed a serious error in accepting the test result despite the appellants having brought to the notice of the Addl. Collector in their meeting with several manufacturers some months ago the demands of money and threats being issued from the office of the Chief Chemical Examiner, New Delhi. The Counsel further argued that the authorities had committed an error in sending the remnant sample for retest omstead of the second and third sample and hence the result of the second test should not have been accepted. Further, she submitted that the Addl. Collector had committed an error in demanding duty on the entire yarn produced in lot No. 15 on the basis of result of test of sample drawn on 6-11-1982. The order had not assigned any reasons for which the test result could be applied for the entire lot. The further contention of the appellants had been that having regard to the manner of spinning of yarn on worsted system and blending operation of various kinds of tops in the gill boxes in small weights from time to time and also in view of the non-uniformity in weight per metre of locally made nylon tops, marginal variation in nylon content of yarn at various points is inevitable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/-. We find from the reply letter dated 19-1-1983 to the show cause notice, the appellants having expressed apprehension regarding test results in a meeting of industrialists a few months prior to the raid and collection of the samples. The appellants had not specifically pointed out the person who had demanded money nor they had demanded for any investigation in the meeting or later either. Such a vague allegation of demand for money by some person from Test house at Delhi is no allegation against any specific person or the Chief Chemist who has signed the report. As pointed out by the learned Departmental Representative, the Chief Chemist who has signed the report is a responsible person and his credit cannot be challenged so easily and further there is no allegation of demand for money from him and as such the test report is a true result of test of the contents. The test result cannot be assailed on such vague allegations made several months ago in a joint meeting. To set aside the test results, the appellants should show positively the lacunae in the result. The appellants could very well have called the Chief Chemist for cross-examination and sought the procedure adopted f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial and trade or similar such grounds cannot be considered by us, hence we reject the other grounds of appeal also. However, we find strength in the arguments of the Counsel for appellants that the learned Collector had erred in levying duty on 2122.100 kgs. of yarn when the total yarn produced in lot was I960 kgs only relying on a decision of this Tribunal in Standard Woollen Mills v. Collector of Customs, Chandigarh reported in [1987 (28) E.L.T. 417]. To this extent the appellants succeed and the duty charged being modified to this extent only. The penalty imposed is excessive and the same is reduced to Rs. 1000/-. With this modification, the appeal is dismissed. 9. The Cross-objection does not survive and the same is also dismissed. 10. [Contra per : D.M. Vasavada, Member (J)]. - I have gone through order dicated by learned brother, Sh. S.L. Peeran and with utmost respect, I have to state that I am unable to agree with the same. In the paper book, Annexure C is a letter dated 19-1-1983 addressed to the jurisdictional Assistant Collector by the appellant wherein paras 3 and 4 are read as under : We also draw your attention towards the meeting held with your goodself a fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was carried out by the Chief Chemical Examiner (though there is nothing on record to substantiate this fact) and accepting the contention of the Ld. D.R. that such higher authority would not manipulate things and that his bona fides should not be doubted then also what he tested was the remnant sample which was lying in that office. In that case, it would not be proper. When jurisdictional Assistant Collector acceded to the request of the appellant for retest, it was expected of him to play fair and to send another sample to another laboratory. It is true that the appellant had requested that the sample be sent to such test house at Ludhiana but then it would not be obligatory on the part of the Assistant Collector to send it to that laboratory. He could have selected any other laboratory. I do not suggest, for a moment, that test reports prepared by the office of the Chief Chemical Examiner at New Delhi were in fact manipulated or that the sample sent to them was intentionally changed or adulterated. But it is cardinal principle of justice that justice should not only be done but it should appear to have been done. 13. The Govt. Deptt. must be quite fair in its dealings and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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