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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 ..... ed by the tribunal in case of MORARJEE GOCULDAS SPG. WVG. CO. LTD. VERSUS COMMR. OF C. EX., MUMBAI [ 1997 (12) TMI 365 - CEGAT, MUMBAI] where it was held that 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. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 970 of 2010 - A/86989/2019 - Dated:- 20-8-2019 - Hon ble Dr. D.M. Misra, Member (Judicial) And Hon ble Mr. Sanjiv Srivastava, Member (Technical) Shri R.M. Malhotra, Director, for the Appellant Shri Anil Choudhary, Deputy Commissioner, Authorised Representative for the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shri Anil Choudhary, Deputy Commissioner, Authorized Representative for the revenue. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 While dropping the demand Assistant Commissioner has recorded the findings as follows: The issue involved is determination of % of polyester to ascertain the correct slab of duty rate to manmade fabrics under Notfn No 254/87-C. EX. There was dispute in respect of quality number mentioned in table below where testing by Dy Chief Chemist, Bombay showed % of polyester higher than 70%. The test results were challenged by the assessees the samples were sent for retesting to Chief Chemist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77 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 ₹ 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 benefit of the above referred Board Letter stating as follows: Boards letter No 261/19/12/76-CX.8 dt 25.02.77 gives an allowance of 2.5% while determining p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 such + variance and prescribed a tolerance limit in case of textile we see no reason for not accepting such tolerance in determini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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% may be given in favour of the manufacturer on account of unevenness in the denier of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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