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TMI Blog2000 (11) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ries as per sales invoices indicated in the show cause notice dated 16-2-1990 and they were directed to pre-deposit a sum of Rs. 46,327.32, besides penalty of Rs. 7,000/- imposed under Rule 173Q of the Central Excise Rules. The show cause notice does not deal with any seizure of goods in question which was said to have been removed in terms of the invoices referred to in the said notice. There is cross-examination by the Chemical Examiner of the impugned goods. There is reference to drawing of samples of eyetex pencils drawn from the stock available in the factory and the same having been sent to Chemical Examiner, for his opinion, who on his test opined that the items sent for examination were "eyebrow pencils - beauty or make up preparati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication for eyebrow pencil, the same could not break. The results of cross-examination of Dr. Badri Prasad was also relied to show that the report did not pertain to eyebrow pencil. However, the Commissioner in the impugned order has relied on the Chemical Examiner's report to hold that what was cleared by the invoice was eyebrow pencil, which was required to have cleared on payment of duty. 3. Arguing for the appellants, learned Consultant Shri C. Chidambaram pointed out that the test result was with regard to samples which were lying in the factory stock. The appellants were manufacturers of various types of pencils. 'Eyetex' was a common brand name for all types of pencils. Each type of pencil and its name was added along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner's findings for upholding the order impugned. 5. On a careful consideration of these submissions, it is seen from the Chemical Examiner's report that samples were soft and breaks easily with slight pressure and answer test for wax, carbon black and clay. It also stated that references available in the literature for eyebrow pencils have shown similar composition and therefore, the samples "can be considered as eyebrow and beauty make up preparation". Even from this report, there is no definiteness that the item sent for test was eyebrow pencil, as it is only a presumptive finding that the sample "can be considered as eyebrow pencil". The first and foremost thing, which the Revenue was required to prove in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the test results of the Chemical Examiner cannot be applied for different category of goods removed through invoice in question. For the purpose of applying test results, the Revenue ought to have been shown that the test result pertaining to goods which were removed. There is no evidence to link that samples removed from the stock with the goods removed through invoices in question. Therefore, it can be easily concluded that the Revenue has not discharged their burden in showing that there was mis-declaration and the appellants had removed eyebrow pencil in the garb of exempted pencils. 6. In that view of the matter, the appellants plea is required to be accepted and hence, the order impugned is set aside and the appeal is allowed.< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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