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TMI Blog2020 (1) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed by the revenue against order in original No 81/94 dated 28.12.1994 dropping the demand of Rs. 1,27,276.77/- (SCN dated 16.08.1989) + Rs. 89,671.50/- (SCN Dated 22.08.1989) 2.1 Show Cause Cum Demand Notices dated 16.08.1989 & 22.09.1989 were issued to the appellant, seeking to demand duty in respect of the man made fabrics cleared by them, by denying the exemption claimed/ availed by them under Notification No 254/87-CX dated 25.11.1987. The said exemption was admissible subject to the condition that percentage of polyester in manmade fabric was upto 70%. 2.2 On the basis of the sample test reports received from Chief Chemist CRCL, Assistant Commissioner has vide his Order in Original No 81/94 dated 28.12.1994 dropped the demand. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi have indicated % of polyester above 70% in respect of Quality No 853, 2018 & 2002. For quality 853, 2002 the assessee claimed benefit of Board's Letter 261/19/12/76- CX.8 dated 25.2.1977 giving allowance of 2.5% (2.5 unit) in test report in favour of manufacturer, by which the % of polyester would come below 70% in respect of these two qualities. While for quality 2018, they paid the differential duty of Rs. 6210.97 under TR-6 Challan No 91/ dated 24.05.93. I find that assessee's claim of benefit under aforesaid Board's Letter admissible in respect of quality No 853, 2002, 1047, 1022, while for quality 847,1035, 1017 the test report indicates percentage below 70%." 4.3 Commissioner (Appeals) has in the impugned order denied the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute that, though the declaration indicated 42%, on test it was found to be only 39.2% In such cases, however, we find that it is not only Central Board of Excise and Customs, which vide their letter No. 261/19/12/76-CX. 8, dated 25-7-1977 recoginse the trade practice and permitted tolerance of 2.5% in such cases but ISI under Standard No. IS : 11195-1985 prescribed tolerance + of 3% in case of composition blend for textile material. In the very nature of things a margin of error is built in when any scientific determination is done in the measurement etc. and this margin of error varies from commodity to commodity and the methodology of the test adopted and the instruments used for that purpose. Considering that ISI also has accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics. It is evident therefore that in order to arrive at the classification, fabric made from yarn or a mixture of synthetic or artificial yarn with cotton or wool, the tolerance factor has to be applied. 4. We are also not persuaded by the next objection of the departmental representative that the tolerance factor provided is in order to compensate for variations in tests and that since in the present case the goods have been tested more than once such compensation need not be rendered. This contention is open to two objections. The Board's circular did not say that the tolerance factor has been provided for possible variations in test resulting on account of differing methodologies imply in such tests. It says that the tolerance of 2.5% ..... X X X X Extracts X X X X X X X X Extracts X X X X
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