TMI Blog1986 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... adjournment of the hearing but that this letter does not appear to have been placed before the Bench on 30-5-1986 resulting in the dismissal of the appeal for default and in the circumstances the appeal may now be restored to file. In view of the said fact Shri Vineet Kumar for the Department did not oppose the application. Accordingly, the order of dismissal dated 30-5-1986 was set aside and the appeal was restored to file. 2. Thereupon the appeal was taken up for hearing. The appellants had exported animal food (compound). The same was exported free of duty in terms of Notification No. 16-Cus. dated 22-1-1977 on the basis that the animal food contained not more than 40% protein content. Subsequently under orders dated 18-6-1979 and 21-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities have relied upon a test report of the Custom House Laboratory regarding test done on 7-4-1979, nearly two years after the drawal of the samples, and in the circumstances the said test report ought not to have been accepted. The order of the Assistant Collector dated 18-6-1979 refers to the protein content to be 40.30% according to the Custom House test. The copy of the report filed by Shri Lodha, as given to his clients, refers to the protein contents as 40.18%. Neither side is able to throw any light on this discrepancy. ; 4. The main contention of Shri Lodha is that in view of this large time lapse between the date of drawal of sample and the date of test, the sample would have undergone chemical changes resulting in the enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oratory nearly 3 years after the sample was taken there was every possibility of the percentage of free fatty Acid in the sample having risen due to Chemical changes during this time lapse. The sample tested was of Dal Biji. The Supreme Court observed that oxidation due to exposure to air has an effect of increasing the free fatty acid contents of edible fats and oils. The product considered in the case before the Punjab High Court was Til Oil. The High Court observed that there was no evidence to show that the sample was properly protected before the test was done. Shri Lodha relied on these decisions to contend that in the present case also the increase in the protein contents must be held to have been due to lapse of time. As earlier men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been due to lapse of time would depend on the fact whether the sample had been kept exposed to air and high humidity and could have been affected by oxidation. As noted earlier, the Collector appears to have obtained information, evidently from the Custom House Test Laboratory, that the sample had been kept in air tight sealed containers, thus avoiding exposure to air or humidity. But, as pointed out by Shri Lodha, he had not disclosed this information on the appellants and therefore did not allow them an opportunity to challenge the veracity of this assertion. In the circumstances there can be no doubt that the appellants had been prejudiced in the presentation of their case on this aspect, when the Collector relied on information ..... X X X X Extracts X X X X X X X X Extracts X X X X
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