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TMI Blog2014 (3) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... en sent to Shri Ram Institute for Industrial Research and have actually been registered by them, the test report of the same is required to be made known to the appellants and should be relied upon by the adjudicating authority so as to give a justifiable finding. Appellants made a request for re-test of the samples - no justifiable reason for denying the said request of the appellants. The Delhi Test House Report is subsequent to the passing the present impugned order, but in as much as the same shows the presence of betel nut to the extent of 9.8% and in view of the fact that we have already expressed our unhappiness over the manner of sending of samples to CRCL a report of Shri Ram Institute for Industrial Research, we deem it fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in quadruplicate, from the hopper of FFS machines as well as from the stock of the finished goods, which was ready for marketing. Each said sample was to the tune of 25 grams approximately. Statement of Shri Bal Kishan Gupta, partner of M/s. K. K Sales was recorded as also the statement of another partner Shri KG Sharma was recorded wherein he deposed that the said product Chutki contained less than 10% of betel nuts. 3. It is seen that thereafter, the samples so collected were forwarded to Central Revenues Control Laboratory (CRCL), who vide their report dated 05.08.2011 declared that the quantity of samples received by them was 79.100 grams and the betel nut content was to the tune of 29.1%. The samples were received by CRCL on 04.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir factory. He also submits that though the final product was available in the factory of the appellants on the date of visit of the officers, the officers, apart from drawings samples from final product also drew samples from hopper and instead of sending the sample of the final product for testing, sent the samples drawn from the hopper to CRCL. He submits that it is the percentage of the betel nut in the final product, which is the relevant criteria for bringing the product under the Compounded Levy Scheme and the percentage of betel nuts in the mixture of the product in the hopper would not be relative criteria. He further submits that apart from the said CRCL report, there is virtually no other evidence on record to reflect upon the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining officers and other persons was not accepted by the adjudicating authority. He submits that in the absence of cross-examination opportunity, they could not file a detailed reply in as much as it was submitted before the adjudicating authority that detailed Written Submissions would be filed only after the cross-examination is provided to them. He also submits that though they have made request for re-testing of the samples in terms of the provisions of para 8 of Chapter XI of CBEC Manual, the said request was not accepted by the adjudicating authority. 8. We have also heard Ld. Departmental Representative appearing for Revenue who, by drawing our attention to the discussions and finding portion of the impugned order of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amples as collected and weight of the samples as sent to CRCL even if the samples were weighed as 25 grams on eye estimation basis. Secondly, the appellants were having weighing machines in their factory and it was easy for the officers to weigh the samples. 10. As regards the appellants grievance about the test conducted by Shri Ram Institute for Industrial Research, we find that the appellants have sought information from Shri Ram Institute for Industrial Research and based upon that had filed an affidavit on record. As per the said affidavit, it stands deposed by the appellants that the samples drawn from their factory were sent to Shri Ram Institute for Industrial Research for testing and test reports were also sent to DGCI after test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if he is dissatisfied with the test carried out by the Chemical Examiner. Admittedly, such request was made by the appellants within a period of 90 days from the date of communication of test result of CRCL and the adjudicating authority was bound to send the samples for re-testing. We find no justifiable reason for denying the said request of the appellants, especially, when there are many doubts about the correct sending of earlier samples to CRCL. In fact, we find that the appellants final product would be available at many places including the factory premises, the godowns, the dealers premises or in the market. It is not difficult or impossible to collect the samples from various places and to send the same for testing so as to find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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