TMI Blog2013 (8) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... s are clear and complete - Directions were made that samples 'B' or 'C 'may be sent for retesting by the Central Excise Department and in case samples 'B' & 'C' were not available with the department for any reason, sample 'D', given to the manufacturer, may be sent for retesting -In case sample 'D' was not in a condition for testing for any reason, or was not available with the manufacturer, the department may draw fresh samples from the manufacturer in the manner, which was provided for sending it for retesting – Decided in favor of assesse. - Writ Tax No. - 8 of 2012 - - - Dated:- 24-1-2012 - Hon'ble Sunil Ambwani And Hon'ble Manoj Misra,JJ. For the Petitioner : Rahul Agarwal,Bharatji Agrawal For the Respondent : S. P. Kesarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff entry 40082910, and attracted duty @ 16 %, 14 %, 8 % and 10 % (depending upon the rate in force at the relevant time) during the period 2006-07 to January 2011. The department relied upon the test report dated 5.8.2010, given by the Director, FDDI, Noida, and the test report dated 29.3.2011, given by the Rubber Institute, Thane, Maharashtra. 5. It is alleged that both the reports did not give the percentage of resin in the samples or the physical and chemical properties of the goods, and that the reports made available to the petitioner were too vague. The petitioner requested on 19.5.2011, to give complete reports given by the testing institutes, detailing the percentage of resin and the physical and chemical properties of the sample ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpired. The Court, however, provided that the petitioner shall file reply to the show cause notice. By this writ petition the petitioner has prayed for quashing the order dated 18.8.2011, by which petitioner's request, for re-testing the sample, which according to the department after testing of the samples drawn by it were found to contain resin, on which the manufactured item will attract excise duty of 10%, has been rejected. The petitioner has also challenged the order dated 14.10.2011, by which the reasons for rejection have been communicated to him, by the Superintendent (Technical) Central Excise, Kanpur. It is contended that the petitioner has a right for re-testing of the samples under CBEC's Excise Manual of Supplementary Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the two Government recognized independent labs. Both the test reports are clear and complete. These test report itself speaks the rubber sheet manufactured by the petitioner contains High Styrene Resin (by IRMARA Thane) and Resin rubber sheet by FDDI, Noida). Hence there is no doubt about the constituent of the produce so the request of the party was denied. 2. Complete test reports are enclosed. 3. Re-testing was denied only on the ground that the department has already got tested the samples from two different test labs ad the test report of both the test labs are similar." 9. The Superintendent (Preventive), Central Excise, Agra has also enclosed the complete evaluation report from Indian Rubber Manufacturers Research Associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The four samples drawn for test should be clearly marked as : (a) Original for Chemical Examiner (to be dispatched to him along with the declaration and the relative test memorandum under intimation to the Assistant/Deputy Commissioner concerned). (b) Duplicate to be sent to the Deputy/Assistant Commissioner of Central Excise (to be forwarded to him for safe custody for further use in case a dispute arises. (c) Triplicate for Range Officer (to be retained for any further reference or to cover loss by post or other emergency). (d) Quadruplicate to be given to the manufacturer (for his own record). 8.5 Before dispatch of sample to the Deputy/Assistant Commissioner of Central Excise and the Chemical Examiner, the samples should be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into quasi criminal liability on the manufacturer. In the circumstances, we are of the opinion that the denial of the statutory right for retesting the sample amounts to violation of principles of natural justice resulting into serious civil and criminal liability. 12. Whenever a right is given by a Statute for retesting, the reasons for dissatisfaction of the manufacturer with the test carried out by the chemical examiner are not relevant. It is sufficient to state that the assessee is dissatisfied with the test carried out by the chemical examiner. In such case, his application to Deputy/Assistant Commissioner, Central Excise within the prescribed period of 90 days and deposit of prescribed fee is sufficient for direction to retest the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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