TMI Blog2017 (4) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... as admittedly not been got tested by the department. The entire case of the department is therefore based on the test result recorded in the laboratory testing register of the appellants - in the absence of a proper test report done by the department, the reliance placed on the other evidence does not lead to the conclusion that impugned goods are Motor Spirit - appeal allowed - decided in favor of appellant. - E/1893/2008 - A/60371/2017-EX[DB] - Dated:- 6-10-2016 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Manish Gaur, Advocate for the appellant(s) Shri G.M. Sharma, A.R. for the respondent(s) Per: Devender Singh The appellants are in appeal against the Order-in-Original No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 173-B of Central Excise Rules, 1944 indicated the description of goods i.e. Organic Composite Solvents / Ind. Solvent (Cat-I to III) under Chapter Heading 3814.00. They were also availing SSI benefits under Notification No.9/99-CE dtd. 28.2.1999 and also availing Modvat on inputs. 2.4 The scrutiny of Lab Testing Register pertaining to finished goods tendered on revealed that this register contained entries relating to percentage recovery at different temperatures and boiling point and final boiling point besides category wise total production for the day. 2.5 In order to ascertain the nature and nomenclature of finished products manufactured by the party, a reference was made to the I.S. Specification to Motor Gasoline or Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied by the party. The same has been adjudicated by the Commissioner resulting in confirmation of demand alongwith interest and imposition of penalty under Rule 173Q and Section 11AC of the Central Excise Act, 1944. Aggrieved by the same, the appellants are before this Tribunal. 4. Ld. Advocate for the appellants argues that the Commissioner has clearly gone beyond the show cause notice in discussing the characteristics of raw material i.e. Naphtha and in holding that was a Motor spirit. He argued that Naphtha can be used as a fuel by itself or in admixture with any other fuel in Spark Ignition Engine. He further argued that in order to classify the product as a motor spirit under Heading 27.10, two criteria have to be met as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been derived from the data recovered from the party's own register containing test report and the statement of the lab chemist of the appellants. Ld. A.R. further reiterated the finding in the order of Commissioner. 5. Heard both the parties and perused the records. 6.1 The issue to be decided in this case is whether the product manufactured by the appellants namely Organic Composite Solvents is classifiable under chapter sub heading 2710.13. 6.2 We find that the onus of proving that the product in question falls within the definition of Motor Spirit classifiable under aforesaid sub heading is on the Revenuer In this case, the product in question has admittedly not been got tested by the department. The entire case of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of laboratory testing to establish the subject parameter. In the absence of a proper chemical analysis done by the department to establish the required criteria, other adduced evidence does not support the case of the department. 6.5 In view of the foregoing, the order of the Ld. Adjudicating Authority classifying the impugned goods as Motor Spirit is purely an opinion rather than an outcome of scientific verification of samples of disputed product. In this background, the following reproduced findings of the Ld. Tribunal in the case of Kuchchal Chemicals Ltd (supra) are quite pertinent: 10. The definition of 'motor spirit' is given under supplementary note of Chapter 27 of the CETA, 1985. As per aforesaid definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to categorise the disputed goods as motor spirit. This approach by the adjudicating authority in our view is not tenable particularly when the Chemical Examiner who is an expert could not give any opinion regarding suitability of disputed product as fuel for Spark Ignition Engine. Thus we are unable to sustain the impugned finding of adjudicating authority which are in the nature of his opinion without any scientific verification of samples, and as such we are unable to agree with the findings written by the adjudicating authority. In the case of Kuchchal Chemicals Ltd. (supra) , at least the department had got the product tested once and the Tribunal felt that the Department should have got the product tested further to establis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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