9911796707
TMI Blog2012 (8) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Briefly stated facts relevant for disposal of the appeal are that the appellant is engaged in manufacture of Polypropylene Multi Filament Yarn (for short, PPMFY) of various deniers falling under Chapter 54 of the Schedule to the Central Excise Tariff Act, 1985. During the period March 1993 to June, 1993, the appellant purportedly cleared 210 denier without payment of excise duty claiming exemption under Notification No. 31/93-C.E., dated 28-2-1993. As per the Notification, PPMFY 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 Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant with interest and also imposed equal amount of penalty. The Commissioner (Appeals) while disposing of the appeal against the Order-in-Original dropped the interest and penalty. However, he confirmed the duty demand. 5. Shri Mayank Garg, ld. Advocate appearing for the appellant has assailed the impugned order on the ground that the adjudicating authority as well as the appellate authority were not justified in confirming demand particularly when admittedly, the two test reports pertaining 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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