9911796707
TMI Blog2001 (2) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act. For the purposes of checking whether the product in question contains alcohol or not the central excise authorities have been drawing samples of the appellants' product and getting the same tested from time to time. The appellants have produced a list of such tests conducted during the period 1986-94. It is seen from the said list of samples drawn and tested test reports that all the tests, except the one involved in the present appeal showed presence of alcohol in the final product. The sample involved in the present appeal was drawn on 14-6-1990 under test Memo No. 2/HL/90. 2. After the drawing of the sample, the appellants were issued a show cause notice on 30-11-1993 alleging that the test result of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they had filed all the relevant pages of the various statutory registers showing the use of the alcohol as one of the ingredients in the manufacture of their final product under the batch number from where the sample was drawn. It was also showed to the Commissioner that the goods of the said batch were cleared from the factory under the physical control of the authorities under the Drug Act. The certificate given by the Deputy Commissioner of Excise (Special), West Bengal certifying that from the records and registers maintained by the appellants under the Drugs Act it was clear that it used alcohol in the manufacture of 'Boroplus Prickly Heat Powder' of Batch No. 84 of 6/90. As such he submits that there could be no question of non-u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise, to whom the reply filed by the appellants was sent by the Commissioner for his comments, Shri Bagaria submits that even in the said letter the Asstt. Commissioner has observed that in most of the cases testing was done within a period varying from about ten days to two months from the date of drawing of the samples, whereas in the present case testing has been done after a period of four and a half months. Accordingly he has recommended that it may be verified from the chemical examiner's end as to whether by reason of being kept in open and exposed to atmospheric reaction for a long time, the alcoholic contents will evaporate due to atmospheric reaction. Inspite of the said recommendation, no further verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the foregoing he prays for setting aside the impugned order confirming demand of duty and imposing penalty upon them. 7. Shri V.K. Chaturvedi, ld. SDR appeared on behalf of the Revenue and reiterated the reasoning of the Commissioner. It has been argued that the test of the samples have shown absence of alcohol from the appellants' product and as such the duty has been rightly confirmed by the adjudicating authority with imposition of personal penalty. 8. After carefully considering the submissions made from both the sides we find that the Revenue has been drawing samples of the appellants' product right from 1986 onwards. Even after the drawing of the present sample on 14-6-1990, a number of samples have been drawn thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conducted on the sample after a period of about four and a half months whereas as per letter of the Asstt. Commissioner referred supra the tests in all other samples were conducted within a period of ten days up to maximum of two months. As such there is a chance of the alcohol having been evaporated from the final product if the same has been kept in the open and or in not desirable conditions. That makes the test report open to doubt. As such we feel that the confirmation of demand of duty based upon the said test report is not justified. Accordingly we set aside the impugned order and allow the appeal with consequential relief to the appellants. 9. Inasmuch as the appeal has been allowed on merits. We are not expressing our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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