9911796707
TMI Blog1993 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Authorities, samples were drawn from the petitioner's products. The samples were submitted to the Chemical Examiner, Customs House, Calcutta. The Chemical Examiner submitted 4 (four) test Memos in respect of four of the petitioner's products. The Test Memos read as follows : "(I) Test Memo No. 3/PV/SHM/86 dated 30-7-1987 (Air Drying Black Insulating Varnish - 70/38/07). "The sample is black coloured free flowing liquid compound of bituminous matter and volatile organic solvents. Percentage of Nonvolatile Residue = 46.0 by wt. It gives a tack-free transparent adhered coating. The laboratory is not equipped to test the electrical insulation properties or varieties." Sd/- Illegible, 16-10-1986 Chemical Examiner Customs House, Cal. (2) Test Memo No. 57/SPL/27(1)/87, dated 29-4-1987 (IMC Bitugard Black - 20/38/38) "The sample is black coloured free flowing liquid compound of bitumen in volatile organic solvents. It gives tack-free transparent adherent coating." Sd/- Illegible, 10-9-1987 Chemical Examiner Customs House, Cal. (3) Test Memo No. 58/SPL/27(2)/87, dated 5-5-1987 (Black Japan 73/38/86) "The sample is a black solution of bituminous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of retesting at an early date. We are in receipt of the report of test on 14-7-1988 and as such this request is made within the prescribed period of time contemplated in the rules." 6. On 7th September 1988 the petitioner was informed by the Excise Authorities that its request for retesting of samples had been allowed. An endorsement on the letter dated 7-9-1988 shows that the samples were sent for retesting to the Central Laboratory, New Delhi under registered post on 10th December, 1988. 7. On 7th February 1990 the Central Revenue Control Laboratory (CRCL) wrote to the Assistant Collector giving the results of the chemical analysis of the samples sent. The analysis reads as follows :- "CLR-428 - Bituguard, Black: The sample is in the form of black liquid. It is composed of Bitumen and volatile organic solvents. It gives transparent, tack-free, adherent coating. It has the characteristic of varnish. CLR-429 - Black Japan: The sample is in the form of black liquid. It is composed of bitumen, epoxy resin and volatile organic solvents. It gives transparent tack-free adherent coating. It has the composition of bituminous varnish. It is the other than cut back asphalt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no reference to the letter dated 18/19th August, 1991. The Assistant Collector said :- "This is a very old case pertaining to the year 1988. The report of the above test result has been received on 20-2-1990. The test result is very conclusive in nature and it reflects the nature of the goods in details. The question of Composition as insisted upon by the assessee is nothing but a dilatory tactics on their part. Further reasonable opportunity was also given to the assessee to justify the classification of the subject goods under Chapter Heading 27 but they failed. As such I do not find any reason to make further delay by way of acceding to their request." 13. He accordingly confirmed the classification of the petitioner's products under sub-heading 3210.90 of the Schedule to the Central Excise Tariff Act, 1985. 14. Being aggrieved by this order the petitioner preferred an appeal before the Collector of Central Excise (Appeals). 15. The petitioner contended before the Collector that the request of the petitioner for detailed analysis was reasonable. It was further stated that the view of the Assistant Collector that the request was made only to delay the matter wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been given. This was a vital factor taking into consideration the definition of cutback bitumen and bituminous paints given in the show cause notice itself. The test report has also been criticised on the ground of delay. It is stated that over one year had been taken in submitting the report by the CRCL. There was a possibility of the samples being mixed up. The test report of CRCL has also been criticised on the ground that a Chemical Examiner could not decide classification and the CRCL had exceeded its jurisdiction in saying that the petitioner's product was not 'cut back bitumen'. 21. Finally, it is contended by the petitioner that the Assistant Collector in his order had wrongly placed the onus on the petitioner to adduce evidence in respect of the case that the petitioner's products were cut-back bitumen. It is stated that the respondents wished to change the classification and as such the onus was on the respondents that the goods were classifiable as claimed by them. 22. The respondents have submitted that the writ petition was liable to be dismissed on the ground that the petitioner had suppressed that prior to the 1985 Act the petitioner has chosen to classify its pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to produce all evidence in respect of its contention that the products were classifiable in accordance with the classification claimed. The petitioner did not do so. The production of evidence by the petitioner in respect of its claim was not dependent upon the chemical examiner's report. The petitioner was at liberty to produce independent evidence of the composition of its products. The test report of the Chemical Examiner, Calcutta, was made available to the petitioner in 1988 itself. The report of CRCL was made available to the petitioner in March, 1990. The request for the detailed analysis was made for the first time in August, 1991 more than 1 year later on a date on which the hearing had been fixed by notice dated 2nd August, 1991. Although the letter is not referred to in the order of the Assistant Collector the oral submission of the petitioner's representative to the same effect have been noted in the order. There is no reason why the request could not have been made earlier. 28. The case made out in paragraph 8 of the writ petition that the writ petitioner had called upon the then Assistant Collector to scrutinize the records of the petitioner has not been refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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