9911796707
TMI Blog2003 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... and came up for hearing on 4-3-2003. Each of the departmental representatives present in the Court stated that they were not handling this matter, stating that counsel for the Government was to appear. Nobody appeared for the department, nor was any request for adjournment made by the department. We therefore proceeded to hear the counsel for the appellant and thereafter reserved the matter for our consideration. On the next day Mr. Mishra, Advocate appeared and stated that the counsel for the department could not appear because the department had not been in touch with him and requested for relisting the matter for hearing. He was informed that this was not sufficient ground for rehearing the matter. 2. Mattel Toys (India) Ltd., manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the manufacture of toys. It is also contended that it was not marketable, since no one produced, bought or sold this product. Documents were produced in support. 33/154/3 3. The Commissioner passed common order disposing of these notices. In that order, he did not accept this submission. He noted that the report of test of the product by the Deputy Chief Chemist and the report of the Director, Central Revenue Control Laboratory, indicated the product to be plastisol and stable at normal temperature. The Commissioner also had the material tested on 26-8-1996 by Laxminarayan Institute of Technology, Nagpur University. This report says that the products have shelf life if properly kept in a sealed container and any aged material could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard cake or lump after a day or two. The product is then no longer usable. In view of its extremely short shelf life it cannot be marketed. It is well settled that the burden is upon the department to establish that a particular product is marketable, and this burden has not been fulfilled. Cross-examination which was sought of the Deputy Chief Chemist and the Director of Central Revenue Laboratory has been refused without reason and therefore their report cannot be relied upon. Technical evidence and affidavits produced in support of the claim that the product was not marketable have not been considered. 5. We will now consider the technical evidence that the appellant had submitted to the Commissioner in support of its claim an affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1998 Chemplast Sanmar Ltd., apparently the manufacturer of chemicals states that viscosity build after 24 hours is very high and thus it is recommended that the plastisol be used before 24 hours after manufacture . These materials were submitted to the Commissioner by the appellant in its reply to the notice. 6. The Commissioner has not dealt with these at all. He has relied upon entirely upon the report of the Chemical Examiner and the confirmation of it by Director, Central Revenue Control Laboratory. In his report, the director says that The sample is in the form of pink coloured viscose liquid. It is stable, pourable dispersion of synthetic resin (polyvinyl chloride) phthalate plasticiser along with colouring matter and small amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional Superintendent. The test report of the Chemical Examiner dated 9-10-1997. It would appear that it was the remnant of samples which were forwarded to the Director for test and submitted test of 9-10-1997. In any event, it is clear that the sample was sent to him by Deputy Commissioner of Customs, Mumbai by his letter 12-2-1999. In either events a considerable period would have lapsed between the drawing of the samples and the test. Hence if it is correct, the Chief Chemist s report would demolishes the claim of the assessee that the product was stable after a couple of days or so. Hence all the more reason for cross-examination. 7. We are concerned with the product that the appellant makes and not with the product that res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they could reasonably conclude that this commodity will be manufactured. In that event, the fact that the assessee may have failed to follow the statutory procedure will not make any difference to the fact that the necessary information required by the officers to levy the goods to duty would have been made available, we think that the Commissioner should examine this aspect now. 9. Another point that was argued before us was that the Commissioner has classified the goods in a different heading of the tariff (3904.22) than was proposed in the notice (3911.10). The ratio of the judgment of the Supreme Court in Warner Hindustan Ltd. v. CCE - 1999 (113) E.L.T. 24 has relied upon to say that the Commissioner cannot in his order make a new cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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