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TMI Blog2000 (11) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice dated 16-2-1990 and they were directed to pre-deposit a sum of Rs. 46,327.32, besides penalty of Rs. 7,000/- imposed under Rule 173Q of the Central Excise Rules. The show cause notice does not deal with any seizure of goods in question which was said to have been removed in terms of the invoices referred to in the said notice. There is cross-examination by the Chemical Examiner of the impugned goods. There is reference to drawing of samples of eyetex pencils drawn from the stock available in the factory and the same having been sent to Chemical Examiner, for his opinion, who on his test opined that the items sent for examination were eyebrow pencils - beauty or make up preparations . It was alleged that the trade mark Eyetex o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The results of cross-examination of Dr. Badri Prasad was also relied to show that the report did not pertain to eyebrow pencil. However, the Commissioner in the impugned order has relied on the Chemical Examiner s report to hold that what was cleared by the invoice was eyebrow pencil, which was required to have cleared on payment of duty. 3. Arguing for the appellants, learned Consultant Shri C. Chidambaram pointed out that the test result was with regard to samples which were lying in the factory stock. The appellants were manufacturers of various types of pencils. Eyetex was a common brand name for all types of pencils. Each type of pencil and its name was added along with the trade name of Eyetex . It was pointed out that in the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On a careful consideration of these submissions, it is seen from the Chemical Examiner s report that samples were soft and breaks easily with slight pressure and answer test for wax, carbon black and clay. It also stated that references available in the literature for eyebrow pencils have shown similar composition and therefore, the samples can be considered as eyebrow and beauty make up preparation . Even from this report, there is no definiteness that the item sent for test was eyebrow pencil, as it is only a presumptive finding that the sample can be considered as eyebrow pencil . The first and foremost thing, which the Revenue was required to prove in the present case that the goods which were cleared under the impugned invoice was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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