TMI Blog1972 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ts i.e. below 51 NF and that, therefore, they are liable to pay excise duty only at the rate of Re. 1 per kilo. It is also stated that the Department levied excise duty only at the rate at the first instance but later the departmental authorities took 3 samples of the yarn produced by the petitioners on 13-3-1967 exercising their power under Rule 56. One of the samples so taken was sent for test to the Customs Chemical Examiner at Madras and that showed the yarn to be above 51 NF counts. As a matter of fact, the report of that Chemical Examiner, who analysed the first sample, showed that the count of yarn was found on actual analysis to be 64.7 NF and after allowing a tolerance of 2.5% the actual count of yarn was fixed at 63.1 NF. Based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners honoured the demands issued by the Central Excise authorities for refund of that additional duty imposed on them on the ground that one of the samples had showed that the count of yarn was less than 51 NF that it is not open to the Excise authorities, to ignore the analysis of that sample and proceed only on the basis of the test report on the first 2 samples, that their own analysis done at the mills had showed the counts of yarn was less than 51 NF and that it is only on that basis they have sold the yarn at a price which was applicable to yarn of less than 51 NF counts. The petitioners' attempts to get refund of the additional excise duty have failed. The petitioners have, therefore, come to this Court to quash the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce limit. It is not necessary for us to go into the question whether the tolerance limit adopted by the Excise authorities is correct or not in this case. We are of the view that as one of the 3 samples taken showed the yarn to be considerably below 51 NF counts and as the test said to have been conducted by the petitioners at the factory has shown the yarn to be only of less than 51 NF counts and as the petitioners have disposed of the yarn produced only on that basis, the basis for the finding of the Excise authorities that the yarn manufactured by the petitioners during the relevant period was above 51 NF counts cannot be accepted as conclusive. If really the yarn manufactured by the petitioner during the relevant period was above 51 NF ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
