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TMI Blog2013 (11) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... jected on the ground that the testing was done by Government recognized independent labs, and that the test reports are clear and complete - the reasons given for denial of retesting are not relevant - The right of retesting, for which samples are specifically drawn by by the department in accordance with the instructions issued under the Central Excise Rules 2004, could not be denied, to the assesse – directions issued to retestify the samples – Decided in favour of Petitioner. - Writ Tax No. - 7 of 2012 - - - Dated:- 24-1-2012 - Hon'ble Sunil Ambwani And Hon'ble Manoj Misra,JJ. For the Petitioner : Rahul Agarwal, Bharatji Agrawal For the Respondent : S. P. Kesarwani, Sr. S. C. ORDER 1. We have heard Sri Rahul Agarwal for the petitioner. Sri S.P. Kesarwani, Additional Chief Standing Counsel appears for the Central Excise Department. 2. The petitioner is a manufacturer of rubber sheets, used in the soles and heels of footwear. The rubber sheets manufactured and sold by the petitioner are classifiable under tariff heading 40082110 of the Schedule to the Central Excise Tariff Act, 1985. It is alleged, that the petitioner does not use resin in manufacture of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicated to the petitioner on 18.8.2011 by Superintendent of Central Excise (Tech), Kanpur and subsequently by order dated 14.10.2011, the petitioner was informed that his request for retesting of samples has been declined by the Commissioner, Central Excise, Kanpur, as the test report is very clear, complete and there is no doubt and also since testing has been done by IRMRA, which is a Central Government recognised institution. 6. The petitioner's clearances were stopped by order dated 18.8.2011. 7. On 9.12.2011, we passed an order as follows:- "The petitioner has earlier filed a Writ Petition No. 678 of 2011, in which orders were passed to allow the petitioner to lift the goods on furnishing security other than cash and bank guarantee, on the ground that the time to file reply to the show cause notice had not expired. The Court, however, provided that the petitioner shall file reply to the show cause notice. By this writ petition the petitioner has prayed for quashing the order dated 18.8.2011, by which petitioner's request, for re-testing the sample, which according to the department after testing of the samples drawn by it were found to contain resin, on which the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent test labs ad the test report of both the test labs are similar." 9. The Superintendent (Preventive), Central Excise, Agra has also enclosed the complete evaluation report from Indian Rubber Manufacturers Research Association (IRMRA), and which has been supplied to the learned counsel for the petitioner, today in Court. 10. In the present case, we are concerned with the petitioner's right to the samples retested, conferred by the Statutes CBEC' Excise Manual of Supplementary Instruction 2005, Chapter XI on SAMPLES, para 8.89, which has been reproduced in the interim order. We are informed that four samples were drawn in accordance with paras 8.1. to 8.4 of the instruction issued under the Central Excise Rules 2004, which are quoted hereunder for the purpose of the case:- "8. Procedure for testing and re-testing of samples drawn by the Department. 8.1 Except where there are special instructions for particular kind of samples, the representative samples from such or any lot must be drawn in quadruplicate in the presence of the owner/manager of the factory or his representative. 8.2 The quantities of excisable goods or materials taken for testing should be minimum neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been prescribed in Appendix A of the Central Manual of Chemical Laboratories in the Custom Houses containing procedure, rules and regulations by Directorate of Publication, Customs and Central Excise, New Delhi 1983....." 11. The provisions of the Central Excise Act provide for imposition of penalty and interest, for non payment of duty. The consequence may also result into quasi criminal liability on the manufacturer. In the circumstances, we are of the opinion that the denial of the statutory right for retesting the sample amounts to violation of principles of natural justice resulting into serious civil and criminal liability. 12. Whenever a right is given by a Statute for retesting, the reasons for dissatisfaction of the manufacturer with the test carried out by the chemical examiner are not relevant. It is sufficient to state that the assessee is dissatisfied with the test carried out by the chemical examiner. In such case, his application to Deputy/Assistant Commissioner, Central Excise within the prescribed period of 90 days and deposit of prescribed fee is sufficient for direction to retest the samples in the laboratories of Central Board of Excise and Customs, p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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