TMI Blog1974 (9) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner, excise duty is levied under the Central Excises and Salt Act, 1944. The petitioner was manufacturing yarn of various counts including yarn of 40 counts (English counts) equivalent to 33.9 NF (French count) during the year 1966. 2. On 14-9-1966 the Supervising Officer of the Central Excise department drew samples of yarn said to be 40 counts for the purpose of testing. On the day of drawal of sample, the petitioner had already packed into bales ready for clearance 69 bales of cotton yarn out of the yarn manufactured previous to 14-9-1966. The sample so drawn was 840 yards in length. The Supervising Officer who took the sample divided the sample into three parts and handed over one to the petitioner, forwarded another to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner filed an appeal to the Collector of Central Excise, the second respondent herein. One of the contentions raised by the petitioner was that 69 bales out of 213 bales cleared during the period between 14-9-1966 and 20-10-1966 had been produced before 14-9-1966 when the sample was drawn and therefore the said 69 bales cannot be subject to additional duty. The Collector, however, rejected the said contention as well as others and confirmed the demand. 4. There was a further revision by the petitioner to the first respondent under Section 36 of the Act. The first respondent held that no additional levy could be made in respect of 69 bales which were already manufactured, packed and kept ready for delivery prior to the taking of the sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be tested before action is taken for levying additional duty in this case. We do not think that the refusal to have third sample tested has resulted in the violation of any principles of natural justice in this case. The samples were taken in the presence of the petitioner. The petitioner has not challenged the manner of taking samples in this case and the samples had been certified as the one manufactured by the petitioner. Unless the two test reports are attacked on any sustainable grounds, the authorities are justified in proceeding to act on the basis of the said reports and to levy the additional duty of the basis that the yarn produced by him is more than 33.9 NF. 7. The second ground of attack is that the result of the test re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple is taken. But in this case the petitioner has not shown that anything has been done between 14-9-1966 and 20-10-1966 to produce a lesser count of yarn than the one represented by the sample taken on 14-9-1966. We are not therefore inclined to accept the petitioner's contention that the test reports cannot be taken to represent the count of yarn for the entire quantity manufactured between 14-9-1966 and 20-10-1966. 8. A similar contention was advanced in W.P. 1421 of 1971 (Mad.), Sri Sakthi Textiles (P) Ltd. v. Government of India and it was rejected with the following observations : "The quantity of yarn taken for tests are of substantial lengths drawn at random and it is impossible to carry out the tests of the entire quantity. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave a separate rule dealing with the testing of samples. Besides agreeing with the above reasoning we would like to give one other reason for holding that no rule is needed for dealing with the testing of samples. Rule 56 provides for the drawing of samples and that is the only power needed having regard to the fact that the products manufactured are in the custody of the petitioner and unless the power to draw samples is given to the authorities the authorities may be powerless to enter the premises and take samples. Once the power to draw samples is given how the sample so taken is to be utilised need not specifically be provided, as it relates to the mode and manner of proof. It is not in dispute that the petitioner has also been given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rule 10A had wrongly been mentioned in the demand is of no consequence. It is well established that the quoting of wrong provision of law will not vitiate an order if the order could be sustained on any other provisions of the statute. The question therefore is whether the demand in this case could be sustained under Rule 9B? It is not in dispute that there has been an earlier levy of excise duty on the petitioner on the basis that the count of yarn manufactured by it was 33.9 N.F. As a result of the test reports, additional levy has been made and the differential duty is sought to be levied in addition to the duty already collected. That will squarely come under sub-rule (5) of Rule 9B. Rule 9B contemplates a provisional levy being made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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