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TMI Blog1998 (12) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... rticulars of the sample. The ld. Collector (Appeals) also observed that in view of the above facts and the fact that the Asst. Collector did not get the sample re-tested, `I do not find any justification to ignore the test results of ATIRA, according to which the sample was found to contain 48% Polyester and 52% polynosic . He held that on the basis of this test result, the yarn in question was correctly classifiable under Tariff Item 18 III(ii), chargeable to basic duty at a rate of Rs. 9/- per kg. The ld. Collector (Appeals), therefore, set aside the impugned order and allowed the Appeal. Being aggrieved by this order, Revenue has filed the captioned Appeal. 2. The facts of the case, briefly stated, are that the Appellants are manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 983 was required to be covered by Notification No. 76/82 dated 28-2-1982 for the said period for the purpose of effective rate of duty applicable to such yarn. The duty which was claimed to be paid at the rate of Rs. 18/- per kg Basic duty + 10% of Basic Duty as Special Excise Duty + 15% Basic Duty as Addl. excise duty as a result of chemical test. Accordingly, a show cause notice was issued to the Appellant asking them to explain as to why an amount of Rs. 4,28,785.20 being the differential amount of duty short paid should not be recovered from them u/s 11A. 3. In reply to the Show Cause Notice, the Appellants submitted that they had not agreed with the test result; that they had already sent their own copy of the sample for test to AT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tested by ATIRA who reported the test results as `a small sample of yarn received in sealed packet was tested for percentage composition of polyester and polynosic as desired . The results were given as: Polyester 48%; Polynosic 52%. The adjudicating Authority observed that if the appellants were not satisfied with the test result communicated by the Superintendent of Central Excise s letter, dated 6-9-1983, they were at liberty to opt for re-test of the sample in accordance with law which they have failed to observe in as much as by their letter dated 12-12-1983, they had informed that they had got tested their sample of the yarn by ATIRA. However the sample tested by ATIRA; did not indicate the full particulars of the sample or that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars of the sample were not indicated in the test report, therefore, it was not possible whether the sample tested was the same as was taken by the Central Excise Authorities or was a different one. He submitted that in this view of the matter, the impugned order was erroneous and prays that the Appeal may be allowed. 7. Shri V.N. Nair, the ld. Advocate appearing for the Respondents herein, submitted that the Respondents at the outset objected to the findings of the Chemical Examiner of Central Revenue Control Laboratory, Baroda. He submitted that report did not indicate the percentage first, but when subsequently asked to disclose the percentage, they disclosed the percentage. He submitted that the fact remains that there was a sample ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed the percentage which indicated the predominence of polyester fibre. 9. We, also note that the sample was sent to ATIRA, a Government recognised Laboratory for testing. This sample was tested by the ATIRA Laboratory and test results indicating percentage of yarn broadly were intimated to the Respondents herein who produced the same before the adjudicating authority. We note that the adjudicating authority has observed that, though, the Government had permitted re-test of the samples through recognised laboratories of the choice of the person. However, for identifying a sample taken, detailed particulars were required to be noted so that the report could be relatable to the sample. The Asst. Collector, as Adjudicating Authority, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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