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TMI Blog2015 (10) TMI 2267X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation, the matter is in their favour. Keeping in view the fact that the samples of the goods are not available and it is not possible to retest the goods but the only solution left is to decide the case based upon whatever evidences are available on record. Since the Commissioner (Appeals) has not examined all the evidences particularly the test reports of the assessee themselves, statements made by various personnel of the assessee and other related evidences, we consider it appropriate that we set aside the order of the Commissioner (Appeals) and remand the matter to the Commissioner (Appeals) to re-adjudicate the matter based upon the evidences already available and which form part of the show cause notice. - Matter remanded back - De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposited by the assessee during investigation, imposed penalty under Section 11AC and also imposed equal amount of penalty on Shri U.M. Kini, Director, and Shri S.P. Thakkar, General Manager, under Rule 209A of the erstwhile Central Excise Rules and also ordered recovery of interest under Section 11AB. Aggrieved by the said order, the assessee filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide the impugned order dated 25.2.2005 remanded the matter back to the lower authority with the direction to draw and get the samples of the product properly tested and redetermine the classification of the product and re-adjudicate the matter after affording proper opportunity to the assessee to present their case. 2. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint spirits (other than Benzene-Toluol) etc. with nominal boiling point range 55-115:C specified in that sub-heading etc. He submitted that the main sub-heading corresponding to 2710.13 itself will indicate that there are two requirements. The first requirement is that the flash point should be below 25:C and the second is that the hydrocarbon oil either by itself or in admixture with any other substance is suitable for use as fuel in spark ignition engines. He further submitted that the samples were drawn and were sent to the Deputy Chief Chemist and the Deputy Chief Chemist has confirmed only the first characteristics i.e. hydrocarbon oil has its flash point below 25:C. As far as the second characteristics is concerned, i.e. whether it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, submitted that the first of the foremost thing is that the unit has stopped producing the goods long back and, therefore, at this stage it is not possible to draw the samples and determine the suitability as fuel in spark ignition engines. He further submitted that this is not even required as there are a large number of evidences already available in the show cause notice by which it is possible to determine the classification of the goods. The Commissioner (Appeals) could have and should have decided the matter based upon these evidences. He also took us through the grounds of appeal and submitted that the Commissioner (Appeals) has relied upon the decision of the Honble Supreme Court in the case of UOI vs. Garware Nylon reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We have considered the rival submissions. Heading 27.10 as it stood at the relevant time read as under:- 27.10 Petroleum oils and oils obtained from bituminous minerals, other than crude; Preparations not elsewhere specified or included, containing by weight 70% or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations - Motor spirit, that is to say, any hydrocarbon oil (excluding crude mineral oil) which has its flash point below 250C, and which either by itself or in admixture with any other substance, is suitable for use as fuel in spark ignition engines : 2710.11 Special boiling point spirits (other than Ben-ze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enues contention is that the main terms of remand is to get the goods retested, but the goods are not being manufactured any more and, therefore, neither the sample can be drawn nor the goods can be retested. On the other hand, the assessee feels that based upon the available information, the matter is in their favour. Keeping in view the fact that the samples of the goods are not available and it is not possible to retest the goods but the only solution left is to decide the case based upon whatever evidences are available on record. Since the Commissioner (Appeals) has not examined all the evidences particularly the test reports of the assessee themselves, statements made by various personnel of the assessee and other related evidences, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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