9911796707
TMI Blog1994 (11) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... n-made fibres of various description. Thereafter, 81 samples of various lots of yarn were drawn from the seized bundles of yarn and were sent for test to the departmental laboratory at Bombay. Out of the samples of 81 lots the result in respect of 10 samples were found different from the composition of fibres declared in the gate-passes/invoices relating to the particular consignment/lot at the time of clearance from the factory. The appellants made a request for re-testing of these samples. However, the department tested only 9 of the samples in question and out of the result of re-test of 3 samples were found to agree with the declaration made by the appellants at the time of clearance of relevant lot/consignment from the factory. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, made a request vide their letter dated 17-9-1994 that the matter may be decided on the basis of facts and record and the submission made in their appeal memorandum. On behalf of the respondent the Learned SDR, Shri M.K. Jain reiterated the findings of the Collector and pleaded for the rejection of the appeal on the ground that the tests carried out in respect of samples drawn from 7 lots of seized detained goods were found to have polyester contents of 50% rendering the goods as classifiable under Tariff Item 18-E as against the declared classification of the goods as Tariff Item 18-III (ii) on the basis of that polyester contents of the yarn was less than 50%. He added that on the appellants' request the samples in question were sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferring to sub-para (IV) of para 10 relating to Sl. No. 4 of the annexure `A' of the show cause notice the appellants have stated that the said sub-para IV relates to the following goods : (i) Lot No. MD-2-2/325 P.V. 48 : 52 - 200 Kgs. cleared under G.P. No. 296 dated 21-5-1983. (ii) Lot No. MD-2/325 NCSW : V48 : 52-779.200 Kgs. cleared under G.P. Nos. 380 and 382 both dated 23-6-1983. It has been submitted that even as per the test report of the department the yarn at Sl. No. 2 contained polyester and viscose fibre in the ratio of 49.1 : 50.9 and accordingly the appellants had correctly paid the duty on the said lot in question and accordingly the duty amounting to Rs. 8,766/- has been erroneously demanded in excess. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants' request for retest of these 10 samples the department subjected only 9 samples to retest and as a result thereto 3 more samples were found to agree with the declaration made by the appellants at the time of clearance of the goods. Thus, out of total of 81 samples drawn by the department only in respect of 6 samples the test indicated that the composition of the goods declared by the appellants at the time of clearance from their factory were different from that indicated on the basis of test. While confirming the demand of duty amounting to Rs. 47,910.68 on the basis of the results of retest of 9 samples the Collector has not indicated the reasons for not acceding to the appellants' request for the retest of the 10th sample. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n confirmity with the declaration given by the appellants at the time of their clearances from their factory. For the same reason we are not inclined to accept the appellants contention that the penal provision of Rule 173Q was not attracted in their case. 6 In view of the foregoing we set aside the impugned order and remand the matter to the adjudicating authority for de novo consideration in accordance with law and having regard to our finding that the appellants would deserve the benefit of doubt in regard to the goods pertaining to the sample which were not retested and no fine in view of the confiscation would be leviable on account of goods not being available for confiscation. The adjudicating authority shall also reconsider th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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