TMI Blog1987 (10) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... , hence duty was payable on the yarn at a higher rate. Notices were issued for recovery of duty at the higher rate in respect of the yarn spun out of the entire quantity of the two lots from which samples had been drawn, credit being given to the duty already paid. On adjudication in both matters, the Assistant Collector under two orders both dated 17-9-1982 confirmed the duty demanded and in one of the matters further imposed a penalty of Rs. 4,000/-. The duty confirmed as abovesaid in one case amounted to Rs. 3,68,966.45 and in the other case to Rs. 73,612.80 paise. The appeal against these orders were dismissed by the Collector (Appeals) under a consolidated Order dated 26-3-1983. These two appeals are against the said order. 3. We have heard Shri D.N. Kohli, Consultant for the appellants and Shri K.C. Sachar for the Department. 4. Before taking up the submissions of both sides for consideration, it would be convenient to set out the facts in each case a little more in detail. 5. A sample was drawn on 13-2-1980 from the blend in Lot No. 31. By Letter dated 23-7-1980, the appellants were informed that the Chemical Analyst had reported that the polyester fibre content in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants replied under Letter dated 9-4-1981 pointing out they had sought for retest and further that the sample had been drawn on 29-10-1980 and not 4-12-1980. Under Letter dated 9-6-1981, the Assistant Collector conceded the request for retest and asked for deposit of fees therefor. But, simultaneously, Notice dated 8-6-1981 had also been issued quantifying the actual duty payable at Rs. 3,68,966.45 paise (giving credit to the duty already paid). From the records, it appears that a reply had been sent to this notice, date of the reply being 27-6-1981. However, no copy of the reply has been filed in the paper book. The Assistant Collector had fixed the hearing on 17-8-1981 as intimated under Letter dated 16-7-1981. The appellants under their Letter dated 24-7-1981 had sought for adjournment of hearing after the result of retest is available. (This fact is to be gathered from the Letter of the Assistant Collector dated 15-12-1981 at page 47 of the paper book). In this letter the result of retest had been communicated. The Chief Chemist, on such retest, had indicated that the sample contained 17.5% by weight of polyester fibre and 82.5% of man-made cellulosic fibres. On receipt of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the blend yarn. The question then would be whether the demand on the basis of the test results could be raised with reference to the entire quantity consisting of that lot. The quantity is said to be 18,411.5 kilograms. The case for the Department is that the test result would apply to the entire quantity while the case for the appellants is that the test result could be applied only to that quantity of the yarn blended as on the date of taking of samples. The contention of the appellants is that the constituent fibres in the ratio of 85% cellulosic fibres and 15% non-cellulosic fibres are taken out but each is kept separately (under the same lot number) and that periodically quantities from each type of fibre is taken out in the same ratio of 85% to 15% and blended for being spun into yarn. Shri Kohli submits that it would not be possible or feasible to mix the entire blend of 18,411.500 kilograms and hence it was normal to take out the required quantity of the two types of fibres periodically for being spun. It is seen from the Assistant Collector s order that he more or less accepts this contention. T his is to be found in Paragraph 6 of his order. He states there that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yarn that was spun out of the blend from which sample had been drawn on 29-10-1980. 10. It is further contended for the appellants that the demand was barred by time. The demand arose for the reason that the yarn actually spun was not in accordance with the percentage mentioned in the approved classification list and the payment of duty at a lower rate according to the percentage approved in the classification list was, therefore, not proper. Thus the charge was that contrary to the approved classification list removals had been effected of yarn liable to pay duty at higher rate on payment of duty at a lower rate. It is, therefore, clear that the larger period of limitation was available to the department in respect of such demand. The defence of time bar is, therefore, rejected. 11. The above is the discussion with reference to the dispute in appeal No. 1329 of 83 regarding payment of duty. It would appear to us that Conclusion in the other appeal may not be on similar grounds or similar lines. This is for the reason that with reference to the sample drawn on 13-2-1980 from Lot No. 31, the test report was communicated under Letter dated 23-7-1980 disclosing only that the perc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 316 disclosed a marginal variation only from the required percentage. It is explained that this variation may have been for the reason that when out of the two types of fibres kept separately in each lot, a proportion is taken out periodically, there may have been some mistake by oversight. This explanation cannot be said to be unreasonable. On the facts and in the circumstances of the case, we are not satisfied that any case has been made out that the appellants had deliberately flouted the provisions in order to evade payment of duty. We are, therefore, satisfied that the imposition of penalty is to be set aside. 14. If the orders in Appeal No. 1330 of 83 are to be set aside for the ground mentioned earlier, the question then would be whether a re-adjudication is to be ordered. The sample had been drawn in 1980. As in the other case, the result, if a retest is now ordered, could be applied only to a proportion of the total quantity in the said lot. Taking into consideration the time that has lapsed and the quantum of duty evaded, if any, that may be involved, it appears to us that a remand for readjudication may not be called for. 15. In the result, Appeal No. 1330 of 83 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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