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TMI Blog2007 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... and were clearing samples of the goods manufactured by them for testing within the factory premises. After testing the samples become unusable and therefore they destroy the said unused samples as waste and scrap. A separate record of these samples drawn for testing is maintained by them. As the samples were being destroyed within the factory premises for the purpose of testing and before marketing duty was not being paid on the same which was disputed by the department. Duty on the same was demanded and confirmed by the Deputy Commissioner. This order was however set aside by the Commissioner (Appeals) on the ground that the testing of explosives is mandatory under the Explosive Rules, 1983 without which the explosives cannot be marketed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cigarette sticks destroyed in the course of quality control test is concerned, since the company had not maintained any account of destruction of cigarette sticks during the quality control test and no reason was assigned for not producing any account either before the assessing authority or the Tribunal, therefore there was no point to discuss excitability of cigarette destroyed during quality control test and hence it was ruled that, excise duty was leviable on the entire stock of cigarette sticks sent to the laboratory for quality control test. The SDR refers to paras 17 and 18 of the decision in the case of ITC Limited which are reproduced as under :- "17. From a conspectus of the aforesaid decisions, it would be clear that for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to excise duty. 18. Coming now to the second question, it may be stated that learned Counsel appearing on behalf of the Revenue could not dispute the proposition that the quantity of cigarette sticks that is destroyed in the course of quality control test is not liable to excise duty. He, however, submitted that no evidence whatsoever was adduced on behalf of the appellant-company either before the assessing authorities or the Tribunal to show that any cigarette stick was destroyed in the process of quality control test, much less cigarette sticks of any particular quantity inasmuch as, undisputedly, for major period no account at all was maintained and for some period, though account was maintained in relation to the quantity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was clearly stated in the show cause notice that the appellant-company was not maintaining any such account. In view of the non-maintenance and non-production of accounts in relation to the destruction of cigarette sticks during the course of testing, we are of the opinion that excise duty was leviable on the entire stock of cigarette sticks sent to the laboratory for quality control test." 5. From the above decision it was submitted that it cannot be concluded that the samples for testing will not be required to suffer duty, if the accounting thereof is maintained in the factory. What has been stressed and pointed out by the Hon'ble Supreme Court in that case was that, since no account in respect of cigarettes destroyed in the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 197 (Tri.-Del.) wherein it has been held that duty can be demanded on the samples which are consumed otherwise than in quality testing as per decision in the case of ITC Ltd. v. CCE -2003 (151) E.L.T. 246 (S.C.). In view of the same, there is no inaccuracy in the decision of Commissioner (Appeals) which requires no interference. 7. We have considered the submission. We find that the Supreme Court decision in the case of ITC Limited has been considered by the Tribunal in series of decision cited by the learned Advocate for the respondents and all along view taken is that samples which are destroyed in quality control testing are not liable to duty. The Hon'ble Supreme Court in the case of ITC Limited has not only held that cigaret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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