2013 (7) TMI 793

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..... Per: Mr. M.V. Ravindran; These appeals are directed against order in original No.76/COMMR/2008, dt.05.02.09. 2. Filtering out unnecessary details, we find that the issue involved in this case is regarding the classification of the appellant product as under chapter 24 as a manufactured or unmanufactured product tobacco. 3. The adjudicating authority has come to a conclusion, based upon the vari .....

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..... the lower authorities vide their letter dated 15.05.08 for retest of the samples. The said request was not granted by the lower authorities and they denied the retest without assigning any reason, proceeded with adjudication which has resulted in confiscation of the goods and also imposition of penalties. It is his submission that the goods which were seized are lying in the appellant's factory. H .....

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..... He would also rely upon the decision of the Tribunal in the case of 2006 (195) ELT 196 (Tri. Mumbai) which is upheld by the apex court as reported at 2006 (199) ELT A221 (S.C.), for the proposition that for classification of tobacco product as a manufactured product, the change should be irreversible. It is his submission that there is nothing on record to show that the change in appellants prod .....

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..... entions that the lower authorities have not granted them a benefit of retest of the sample despite there being provisions in the CBEC manual seems to have strong force. We find from the impugned order that the adjudicating authority has not recorded any reason for denying the retest of the sample as sought by the appellants. On perusal of paragraph 8.8 to 8.13 of chapter No.11 of the CBEC manual, .....

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..... for retesting of the samples needs to be addressed to by the lower authorities. In view of this, we set aside the impugned order and remit the matter back to the adjudicating authority to reconsider the issue, afresh after getting the sample retested, as prayed by the assessee. 10. After the report of the retest is communicated to the assessee, the adjudicating authority will follow the principle .....

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