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TMI Blog2012 (8) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... t variance with the first report and requested for sending of third set of samples for analysis. It is not explained as to why the test report pertaining to second set of test report was not sent by the Chemical Examiner and why adjudicating authority did not insist on calling for the test report. In the absence of second test report pertaining to second set of samples we are at a loss to make out whether or not as per the second analysis the samples confirmed to the specification of 210 denier yarn with the tolerance limit of +/- 4% and was exempt from payment of excise duty under Notification No. 31/93-C.E., dated 28-2-1993. It is obvious that the Department has withheld the second test, therefore, we are inclined to draw an adverse pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y of 210 deniers, the tolerance of + and less 4% was exempt from payment of duty. 3. Central Excise Department drew three samples each from three different lots of 210 denier yarn manufactured by the appellant. One set of sample drawn was sent to Central Revenue Control Laboratory (CRCL) for ascertaining of the denier of the sample. Test report received from the Chemical Examiner showed that the aforesaid three samples were of 166.8 denier, 221.6, denier and 219.3 denier respectively. The appellant on being informed about the test report disputed the correctness of the chemical analyst s report and requested the Department for sending second set of sample for retesting. The Department acceded to the request of the appellant and sent secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaining to the samples drawn at the same time were at variance and the report of the third set of samples sent for chemical analysis were not received. It is contended that the adjudicating authority/appellate authority have not taken pains to call for second test report which was stated to be at variance with the first test report. Ld. counsel submits that the impugned order is also liable to be set aside for the reason that the third set of test report has never seen the light of the day. 6. Ld. Shri Sanjay Jain, A.R. for Revenue on the contrary has argued in support of the impugned order and he has reiterated the finding of the jurisdictional authority as well as the Commissioner (Appeals). He submits that the impugned order is based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second test, therefore, we are inclined to draw an adverse presumption against the Department that had the second test report been produced it would have gone against the Department. Further there is no explanation as to why the third set of sample did not reach the Chemical Examiner. Ld. D.R. has failed to explain as to how and by what mode the third set of sample was sent to the Chemical Analyst. No receipt from the office of Chemical Analyst is made available on record nor is there any evidence to show that the third set of test report was actually dispatched to the office of Chemical Analyst. This circumstance also go against the Department. 8. In view of the above discussion, we do not find it difficult to sustain the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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