9911796707
TMI Blog1998 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) or sub-heading 3204.11 of the Schedule to Central Excise Tariff Act, as suggested by the Revenue. 2. The Respondents manufacture CPC which was classified by them in their Classification List No. 61/91-92 effective from 1-4-1991 under sub-heading 3204.19 of the Tariff. As it appeared that the impugned product was not ready for use, the Assistant Commissioner classified the product under sub-heading 3204.11 under Order-in-Original No. 243/91, dated 26-11-1991. On appeal, Commissioner (Appeals) vide Order No. KVV-408/92/BRD, dated 14-8-1992 remanded the matter with the direction to get the disputed product tested by the Chemical Examiner and also to find out whether the disputed product could be said to be ready for use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, the ld. SDR submitted that sub-heading 3204.11 refers to pigments and preparations based thereon in unformulated or unstandardised or unprepared forms, not ready for use; that Commissioner (Appeals) clubbed various test reports and came to conclusion that more test reports were in favour of the respondents; that the Assistant Chemical Examiner, Baroda had himself stated that the laboratory was not equipped to ascertain whether the sample of the impugned product was in crude form or pure form; that accordingly no reliance could be placed on the test reports given by the Assistant Chemical Examiner. He, further, submitted that the Chief Chemist's Test Report dated 18-10-1993 should not be relied upon as it was in respect of sample drawn o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the relevant period. In case the Test Reports for samples drawn on 12-4-1993 (sic) are proposed to be ignored as the relevant period is up to December, 1991, then for the very same reason, the report dated 18-2-1993 must also be pushed aside because this sample was also drawn much after the relevant period. Further, the said sample was drawn by the Chief Chemist in a wholesale manner in respect of 20 manufacturers without following the prescribed procedure for drawal of samples. There was every likelihood of mix up as these were two units with the similar name which is apparent from Appendix to Report dated 18-2-1993; Sl. No. 12 refers to Shiv Industries, Nam Desari and Sl. No. 16 is in respect of Shiv Dye Stuff (P) Ltd., Ankleshwar. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which indicate use of CPC directly as pigments." He also mentioned that word "crude" is used in the description of the product as the product will mix up with the material. The ld. Counsel finally submitted that the predominance of evidence is in the favour of the Respondents and the impugned product is rightly classifiable under sub-heading 3204.19. 6. We have considered the submissions of both sides. It is not in dispute that no sample of the impugned product was drawn during the relevant period. All the samples of the impugned product for the purpose of test were drawn during the period subsequent to the relevant period during which the classification of the product was in dispute. The Chief Chemist after discussing the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till drawal of sample in the month of April, 1992. One of the sample, which was tested by the Assistant Chemical Examiner and the report given on 5-5-1993 was drawn on 11-4-1992. There is substantial force in the submission of the Respondents that the reports given by the Assistant Chemical Examiner which had been endorsed by the Chief Chemist under report dated 18-10-1993 cannot be brushed aside. In view of these facts and circumstances and particularly in view of availability of various test reports about the same product we do not find that Commissioner (Appeals) was not justified in giving the due importance to the test report dated 18-10-1993. There is no reason that only the report favourable to the department should be relied upon to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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