TMI Blog1972 (3) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as the Authorities) for the first time, on 16-9-1964, inspected the shop of the petitioner and considered the paint oil manufactured by the petitioner to be an article on which excise duty is leviable. According to the Authorities the paint oil might come under the definitions of 'varnish'. But as they were not quite as to whether the paint oil had the requisite properties of 'varnish' they took 'samples' of paint oil from the petitioner's shop and sent the same to the Chemical Examiner, Madras, for analysis of the sample, reported that the sample contained composition and properties of 'varnish'. A copy of the analyst's report was not, however, furnished to the petitioner then and there and her objections called for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific and clear definition of the term, the Authorities have acted arbitrarily in bringing 'paint oil' within the term of 'varnish'. It is also contended that there has been a hostile discrimination in bringing the paint oil manufactured by the petitioner alone under the levy of Central Excise while other manufactures producing similar products have been left untouched. 3.As regards the first contention, we are inclined to hold in favour of the petition. The petitioner has been manufacturing the paint oil from the year 1961 and till 16-9-1964, when the Authorities took 'samples' of the said oil and no steps were taken to classify the same as an excisable article coming under the item 'varnish'. Even at the time when 'samples' were tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that she had no effective opportunity to establish that the paint oil will not come under the term 'varnish'. In paragraph 2 of the counter-affidavit filed by the respondent, it has been stated that "samples" of the paint oil were taken from the stock of the petitioner in her factory on 16-9-1964 and was sent to the Chemical Examiner, Madras, for analysis and that the petitioner duly signed the copy of the requisition in token of her having been present at the time of the drawing of the samples of the quantity of three ounces. It is not in dispute that in taking samples according to Rule 56 of the Central Excise Rules the normal procedure is that three samples of the article are to be taken. But a perusal of the copy of requisition sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerable delay and the request from the petitioner for a retest has been made within one month from the date of such furnishing. Therefore, the rejection of the application for retest on the ground that it was barred by time was only because no sample was available for being sent for retest after the only sample was tested by the Chemical Examiner and exhausted. Though in the counter-affidavit a stand was taken that three samples of paint oil were taken on 16-9-1964 the record placed before us and the copy of the requisition sent to the Chemical Examiner show that only one sample of three ounces was taken and sent to the Chemical Examiner. As a matter of fact, even in the stock register maintained by the petitioner relating to her manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, they cannot unilaterally act upon it and fasten liability to pay excise duty on the petitioner, especially when all along she has been contending that the paint oil manufactured by her will not come under 'varnish'. The Authorities should have furnished a copy of the Chemical Examiner's report to the petitioner and called for the representations, if any on the report, and if the report was successfully attached by the petitioner, retest should have been ordered, or a fresh sample taken and tested. Therefore, the demand made by the Authorities in this case proceeds only on the decision taken by them as to the excisability of the paint oil manufactured by the petitioner without giving an opportunity to the petitioner without giving an o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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