TMI Blog1987 (7) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... he self-removal procedure in respect of their manufacture of cotton yarn. The appellants were not paying any excise duty and declaring that the goods manufactured and removed are below count N.F. 51 and that therefore they are not liable to pay excise duty. The Central Excise Department periodically takes samples in order to check whether the manufactured yarn is of above count N.F. 51 or below it. One such sample was taken from the mill of the appellant in W.A. No. 207 of 1981 viz., Varadalakshmi Textiles Ltd., on 30-12-1974; the goods having been manufactured on 28-12-1974. As usual, the samples were taken in triplicate. One such sample was sent first to the Chemical Examiner and in his report dated 31-1-1975 he stated that it was of coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. No. 869 of 1978 are also identical except that the dates of inspection, counts and the period are different; the period for which assessment was made being 30-10-1973 to 21-11-1973. Both these writ petitions were dismissed by the learned Single Judge by a common order dated 6-10-1978, holding that there is no illegality in the levy and also for levying for a period till the next sample is taken. 2. The learned Counsel for the appellants raised two contentions. Firstly, based on an unreported judgment in W.P. No. 305 of 1970 dated 1-3-1972, (Coimbatore Pioneer Mills Ltd. v. The Assistant Collector of Central Excise), to which one of us was a party, he contended that when the second time the sample was taken on 22-4-1975, it was found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point is rejected. 3. The second contention of the learned Counsel was that the sample was taken on 30-12-1974 and assessment may be made only in respect of the stock available on that date when the sample was taken, and, on the basis of the Chemical Examiner's report for that sample, goods manufactured in future could not be levied the same rates. In this case, it is true that the first occasion on which the sample was taken was on 30-12-1974 and the second sample was taken on 22-4-1975, and the assessment had been made for the entire period from 28-12-1974 to 21-4-1975, and that could not have been validly done. We may first mention that 28-12-1984 is taken as the date because the samples taken on 30-12-1974 related to the goods manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. If the petitioner in a particular case shows that after the taking of the sample the machinery has been attended to and the yarn produced if of a different count than the one produced on the day when the sample was taken the officers cannot base the test results on the sample for the entire goods manufactured during the period till the next sample 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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