9911796707
TMI Blog1994 (7) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... s made orally during the course of personal hearing. As quasi-judicial Authority, the Appellate Authority cannot exercise the powers which have not been specifically empowered on him by the statute, I cannot go beyond the scope of the provisions of Central Excises and Salt Act, 1944 and the rules framed thereunder. For example in Rules 12, 173L and 173H, it is specifically provided to condone delay in genuine cases. Section 35 of the Act also empowers Collector of Central Excise (Appeals) to condone delay in filing appeal for further period of 3 months. Moreover, the sample drawn by the Excise Inspector was in the presence of the authorised representative of the Mills and he (the Mill s representative) had certified that he was satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned." This test result was communicated by the Range Superintendent to the appellant on 16-2-1985. From this test result, it was observed that the appellant s declaration as regards percentage of polyster and cotton in the fabric was incorrect and that the fabrics contained more than 50 per cent by weight of polyster fibre. On the basis of the test result it was observed that one of the conditions of the said notification in regard to percentage of the content of polyster fibre in the fabrics was not fulfilled and as such concessional rate of duty of 6.5% ad valorem was not available on the fabrics as claimed by the appellant. Accordingly, a show cause notice was issued. 3. Shri R.B. Maniyar, Legal Advisor, reiterated the pleas taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 per cent Cotton while on chemical analysis the Polyester contents were found to exceed 50 per cent to render the fabrics ineligible for concessional rate of duty was not proved as report given by Textile Research Association was not accepted by the Department. 4. In support of his contention that appellant cannot be charged for mis-declaration and suppression of facts when classification list was filed and department approved the same. In support of his contention the decision of Tribunal in the case of Rainbow Ink and Varnish Mfg. Co. Ltd. v. CCE, reported in 1992 (59) E.L.T. 593 were cited and relied upon. Similarly, the appellant cited and relied upon the decision of the Tribunal in the case of Collector of Central Excise v. Muzaff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t charge the appellants for mis-declaration. In support of this contention the appellant relied on the ratio of the decision in the case of M/s. Krishna International v. CCE, reported in 1994 (70) E.L.T. 135. It was also submitted by the appellant that the classification list can be approved only prospectively from the date of filing thereof. In support of this contention they relied on the ratio of the decision in the case of Hindustan Zinc Ltd. v. CCE, reported in 1990 (45) E.L.T. 115. 6. Shri M.K. Jain, the ld. SDR submitted that the appeal is against the order of the Collector, Central Excise (Appeals); that the Collector (Appeals) has rejected the appeal on two counts namely, that though results of chemical analysis by the Deputy Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a reputed institution and the result of the test conducted conformed to their declaration, however, the Department for the reasons best known to them did not accept the test results. On this question of the sample being tested by reputed institution we find that for the purpose of sampling, a sample should be drawn in the presence of the parties to a dispute. In the instant case the dispute was between the Department and the appellant. At the time of drawal of the samples no representative of the department was present and therefore the sample cannot be considered authorised and the results thereof cannot be acceptable and binding on the party which was not present at the time of drawing the sample. 9. We observe that the contents o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants or their authorised representatives clearly showed that the appellant had filed an incorrect declaration and that incorrect declaration as to blend of the fabrics was filed only to evade payment of duty. 11. We observe that initially the fabrics were classified and approved as man-made fabrics vide their classification list No. 11/83, dated 23-4-1983 which was approved by mistake on 16-5-1983. The appellant came forward to point out the mistake in classification and filed a revised classification under Tariff Item 19 i.e. cotton fabrics declaring the blend of fabrics as 48 per cent of Polyester and 52 per cent cotton. A lot of emphasis was laid by the appellant that classification list No. 11/83, dated 23-4-1983 was finally approv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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