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2012 (8) TMI 831 - CESTAT NEW DELHIDuty demand - Exemption under Notification No. 31/93-C.E., dated 28-2-1993 - Held that:- preventive department of Central Excise drew three samples each from different lots of 210 deniers yarn purportedly manufactured by the appellant. It is also not in dispute that looking into the variance in respect of test report pertaining to three different samples on request of appellant second set of samples were sent for chemical analysis. From the record it is evident that the Chemical Analyst instead of sending test report of second set of samples informed the Department that second test report was at variance with the first report and requested for sending of third set of samples for analysis. It is not explained as to why the test report pertaining to second set of test report was not sent by the Chemical Examiner and why adjudicating authority did not insist on calling for the test report. In the absence of second test report pertaining to second set of samples we are at a loss to make out whether or not as per the second analysis the samples confirmed to the specification of 210 denier yarn with the tolerance limit of +/- 4% and was exempt from payment of excise duty under Notification No. 31/93-C.E., dated 28-2-1993. It is obvious that the Department has withheld the second test, therefore, we are inclined to draw an adverse presumption against the Department that had the second test report been produced it would have gone against the Department. Further there is no explanation as to why the third set of sample did not reach the Chemical Examiner - No receipt from the office of Chemical Analyst is made available on record nor is there any evidence to show that the third set of test report was actually dispatched to the office of Chemical Analyst - Decided in favour of assessee.
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