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TMI Blog2013 (7) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 on dated 7.01.2003. 2. This is a typical case where at every stage of the litigation irrelevant legal principles were pressed into service resulting in colossal waste of time of adjudicators including time of this Court. 3. Briefly stated the facts are as follows: 4. The respondent company is engaged at least from 1985 in the business of manufacturing of various counts of cotton yarn falling under heading 52.03 of the Central Excise Tariff Act, 1985 at the relevant point of time. It appears that at the relevant point of time the rate of tax on the yarn manufactured depended on the count/finesse of the yarn. Higher the count higher the duty. On 30.08.1993, the officers of the Central Excise Department inspected the factory premises of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 14.8.1993 and also liable to penalty. Therefore, the show cause notice was issued. 6. Upon receipt of the explanation, the Collector of Central Excise vide order dated 4.10.1994 confirmed the demand to the extent of Rs.1,33,573/- holding that the assessee did not dispute his liability to pay higher tax on the basis of the material contained in the two registers recovered with respect to the balance of the demand based on the material contained in the FILE:- "...I find that the assessee's contention has considerable force as the count determined on the basis of test conducted on the basis of sample drawn on a particular day's production during a week cannot be the representative of the whole weeks production." 7. Aggrieved by the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vs. CCE, Chennai (supra), I reject the appeal filed by the revenue and sustain the impugned order passed by the Commissioner (Appeals). Ordered accordingly." 10. In substance, following the earlier judgment of the Madras High Court rendered in Collector of Central Excise, Coimbatore v. Cambodia Mills Ltd., 2001 (128) E.L.T. 373 (Mad.) and Superfil Products Ltd. v. CCE, Chennai. 2002 (48) R.L.T. 319 (CEGAT - Chennai), the appeal was dismissed. Whereas the decisions relied upon by the department in Ramalinga Choodambikai Mills Ltd. v. Government of India & Others 1984 (15) E.L.T. 407 (Mad.), Bojaraj Textiles Mills Ltd. v. Assistant Collector of Central Excise 1990 (45) E.L.T. 559 (Mad.) and The Government of India represented by its Secre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition in the factory premises. Finding that the samples were of higher count than the declared count by the manufacturer, the department demanded a higher tax not only on the 69 bales of yarn existing in the factory premises on the date of the drawal of the samples but also further material manufactured between the date of inspection (14.09.1966) and 20.10.1966 on which date fresh samples had again been drawn. The question was whether the demand in so far as it pertained to the yarn manufactured between the two dates of inspection solely on the basis of the test report of the samples drawn on the first date of inspection is legally tenable. The High Court held that such a demand was tenable.[ [1] Ramalinga Choodambikai Mills Ltd. Vs. Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers cannot base the test results on the sample for the entire goods manufactured during the period till the next sample is taken. But in this case the petitioner has not shown that anything has been done between 14-9-1966 and 20-10-1966 to produce a lesser count of yarn than the one represented by the sample taken on 14-9-1966. We are not therefore inclined to accept the petitioner's contention that the test reports cannot be taken to represent the count of yarn for the entire quantity manufactured between 14-9-1966 and 20-10-1966. ] 13. The said decision was followed in Bojaraj Textiles Mills Ltd. (supra) and The Chirala Co-operative Spinning Mills Ltd. (supra). Unfortunately, none of the above-mentioned three judgments appear to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment would establish that basic fact. 16. On the other hand the 1st appellant authority found that the defence of the respondent - that the test reports obtained by the respondent for a different purpose but not to ascertain the count of a day are not representative of the count of the production of the entire week - is a tenable defence. 17. The Tribunal instead of deciding the correctness of such a conclusion went into the questions of law unwarranted by the facts of the case. Having regard to the paltry amount involved in the matter, the long and chequered history of the litigation and the resultant wastage of time of the various fora, coupled with the fact, the 1st appellate authority found some substance in the defence of the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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