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TMI Blog2014 (3) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... es are required to be taken up for disposal at this stage itself in as much as we find that there is violation of principle of natural justice in passing the impugned order by the Commissioner vide which he has confirmed the demand of more than Rs.58 crores against M/s. KK Sales and has imposed penalties on all the appellants. 2. As per facts on record, M/s. K. K. Sales is engaged in the manufacture of paan masala product called 'Chutki'. Their factory was visited by the officers of Directorate General of Central Excise Intelligence, Delhi Zone Unit on 10.02.2011, who conducted various checks and verifications. The officers also drew two sets of samples, each in quadruplicate, from the hopper of FFS machines as well as from the stock of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order. 7. It stands strongly contended before us by the Ld. Counsel appearing for the appellants that though the samples were drawn on 10.02.2011, the same were forwarded to CRCL in the month of August, 2011. There is no justification for such late forwarding of samples for the purpose of testing. He further submits that though the samples drawn clearly mentioned the weight of the same as 25 grams, but as per report of CRCL, the samples received by them were to the tune of 79.100 grams. As such, it is the contention of the Ld. Counsel that the samples which were tested by CRCL were not the same samples which were drawn by the officers from their factory. He also submits that though the final product was available in the factory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute for Industrial Research or not and as to whether the results of the same are available or not, an evasive reply was sent by the Department indicating that a number of samples are derived but only reports on record to relevant samples are indicated to the party. He places lot of emphasis on the said issue and prays that the adjudicating authority be directed to disclose the result of Shri Ram Institute for Industrial Research. Ld. Counsel also submits that though the cross-examination of one of the Investigating Officers as also of the Chemical Examiner was provided, who have given evasive replies, their request for cross-examination of the remaining officers and other persons was not accepted by the adjudicating authority. He su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the samples from the final product were collected by the visiting officers, why were they hesitant to send the same for testing, instead of sending the samples collected from the hopper. In any case, we find that the samples collected were of 25 grams weight, whereas the samples received by CRCL and tested by them were of 79.100 grams weight. When this was pointed out to the adjudicating authority, he has observed that the weight of 25 grams was adopted by the officers on eye estimation basis. However, we do not find any merits in the above stand of the Revenue on two counts. First, there cannot be such a huge difference between the weight of the samples as collected and weight of the samples as sent to CRCL even if the samples were weighe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made known to the appellants and should be relied upon by the adjudicating authority so as to give a justifiable finding. 11. Apart from the above, we also note that the appellants made a request for re-test of the samples, which request stands rejected by the adjudicating authority. We also note that in terms of para 8 of Chapter XI of CBEC Manual, which lays down the procedure of drawing of samples and testing and re-testing of the samples and the assess is within his rights to apply for re-testing of samples within 90 days from the date on which the test result was communicated to him, if he is dissatisfied with the test carried out by the Chemical Examiner. Admittedly, such request was made by the appellants within a period of 90 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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