9911796707
TMI Blog2000 (3) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... /- was imposed. Penalty of Rs. 1,00,000/- each was imposed upon Shri S.K. Gupta, partner and Pawan Kumar Agarwal, incharge of the assessee unit. This order was upheld by the Commissioner. These three appeals were thereafter filed. Prior to the original adjudication order being passed, the assessee unit had deposited a sum of Rs. 15 lakhs (Rupees Fifteen Lakhs only). The current outstanding is of Rs. 1,48,193/- towards penalty. 3. On hearing both sides and on considering the issues involved, we find that the appeals themselves could be taken up for disposal. We do so, after granting waiver of the balance amount of penalty of Rs. 1,48,193/-. 4. The assessee unit manufactured Microcellular Rubber Sheets for Footwear classifying the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plastic content in the sheets, the assessee continued to maintain that the products were of rubber. As regards the opinion of Professor Pandya, the Assistant Commissioner held that he being an independent person, his opinion was not binding on the department, but that the expert opinion of the Dy. Chief Chemist was so binding. He further held that if the assessees were dissatisfied with the finding, they could have asked for re-test which they failed to do. He also distinguished the reports given by the two agencies as not being conclusive. 5. In the proceedings before the Commissioner the same issues were highlighted by the assessees. It was stressed that the report of the Dy. Chief Chemist was fragmented and was received only as a gis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lular Rubber Sheets for Footwear" under CSH 4008.11 and claimed nil rate of duty, with an intention to evade payment of Central Excise duty. Thus, the charges framed against the appellants are established." 6. We have heard Shri S.P. Sheth Advocate tor the appellants and Shri K.L. Ramteke for the Revenue. 7. We note that Professor Dr. Pandya was present before both the lower authorities during the proceedings. The orders of both the authorities noted his presence and his opinion also. The Assistant Commissioner made light of his chemical opinion in holding that an independent person s opinion was not binding on him. We observe that where the tariff seeks to classify a product on parameters of Chemistry, in the interpretation of those pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire issue. 8. It is not that Professor Pandya is an employee of the assessee or that he is a interested person. Therefore the prohibition stipulated by the Supreme Court in their Judgment in the case of Novopan India Ltd. v. Collector of Central Excise and Customs, Hyderabad [1994 (73) E.L.T. 769 (S.C.)] would also not apply. 9. Both the Assistant Commissioner and the Commissioner exclusively relied upon test report (infact an extract of the report) to the entire exclusion of an opinion given by an independent expert after visiting the assessees factory and after studying the raw materials, the process involved and the chemistry relating to such process. 10. The coverage of Chapter 40 is governed by the stipulations made in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct was amplified in the failure of the original as well as the appellate authorities to even discuss the relative opinions as also the blanket disregard of the request for cross-examination of the departmental chemical authority. We have reproduced the ld. Commissioner s order in its entirety above. He has reiterated what the Assistant Commissioner held in his order; and has completely ignored the opinion of Dr. Pandya. On the ground of lack of appreciation of mind alone, this appeal would succeed. 12. The issue will have to be remanded to the appropriate authorities. But a mere remand order may not result in a total solution being found. Such solution can be found only when the chemical authorities on whom the department relies would go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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