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TMI Blog1999 (8) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... tion lists and the rate of duty should have been 20% ad valorem as per Sr. No. 9 of said Notification. They also filed a classification list No. 9/90-91 dated 17-10-1990 for all the aforesaid products claiming rate of duty at 20% ad valorem and got it approved from the Assistant Collector concerned on 25-10-1990 under the said Sr. No. 9 of the said Notification at 20% ad valorem. All these products were claimed to be emulsions in the classification list dated 17-10-1990. 2.1 It was noticed that although there was no change in the raw materials or in the manufacture process the assessee declared these products as emulsions with intent to avail lower concessional rate of duty at 20% ad valorem as per the allegation of the Revenue. It was also alleged in the show-cause notice that the revised classification list was not according to the circumstances as stated in Rule 173B(4) of the Central Excise Rules, 1944. An allegation of collusion between the concerned Assistant Collector, who approved the classification list, and the appellants was also made in the show cause notice dated 3-1-1992. It was proposed in the said show cause notice as to why differential duty involving an amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and the process of manufacture now given are different from what have been forwarded earlier to laboratory along with the Test Memo. On this basis, learned SDR submits that the adjudicating authority did not think it fit to supply a copy of the test report on the samples sent to the Chemical Examiner because it was of no use when the data itself sent to the laboratory was open to doubt. He further submits that the test report given by the Chemical Examiner is not in favour of the appellants. It has neither been relied upon in the show cause notice nor it has been relied upon in arriving at the findings. He, therefore, submits that there is absolutely no reason for the adjudicating authority to supply a copy of the test report as now was vehemently urged by the learned Advocate for the appellants. Had a document favourable to the appellants been kept by the department, then it could possibly be urged by the learned Advocate that a material piece of evidence has been held back by the department and, therefore, the interest of the appellants has been suffered. 4. On this issue, we have carefully considered the pleas advanced from both sides. We are inclinced to agree with the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , submits that discarding of this opinion by the adjudicating authority is not correct by merely stating that this opinion is not categorical. Learned Advocate fairly admits that the opinion of Dr. Kale is no doubt ambiguous and it is not a categorical opinion whether it is an emulsion or a solution. 5.2 Opposing the contentions, learned SDR submits that a reading of the opinion on which the appellants has strongly relied itself indicates that the products 'could be interpreted' as an emulsion. Learned SDR, therefore, points out that by no stretch of imagination the expression could be interpreted, can be read as categorical opinion. It is clearly an ambiguous opinion and adjudicating Collector rightly discarded the opinion summarily. He submits that it is admitted that other opinion of Dr. Kale which the appellants themselves submits, is not categorical. Learned SDR, therefore, points out that on the basis of such opinions, the adjudicating authority had no option but to go to other evidence on record, namely, the statements of Shri V.M. Parulekar, Development Manager and Shri R.P. Patil, Production Manager of the assessee who had categorically stated in their statement that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that merely this circumstance may raise a suspicion even of high degree but it cannot take the place of proof in proceedings which are penal in nature. It is a well settled proposition of Law that suspicion, howsoever grave it might be, should not be taken as a proof. For this proposition, learned Advocate has relied upon two judgments of the Tribunal, i.e. J. Mohanlal v. Collector of Central Excise, Madras [1988 (35) E.L.T. 709 (Tribunal)] and Luxmi Enterprises v. Collector of Central Excise [1989 (41) E.L.T. 139]. He further submits that the first judgment relies on Madras High Court judgment reported in Madras Law Journal in 1 MLJ 305. Learned Advocate, therefore, submits that the payment of duty for the entire period cannot be made by invoking the larger period of limitation of 5 years, at best the demand could be made for six months even if it is held that the demand should not be prospective. 8. Against the aforesaid submission, learned SDR submits that the circumstances relied upon by the adjudicating authority is not merely of the impugned classification list approved within 10 days but there are many more circumstances. One of the circumstances is that there was earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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