TMI Blog2000 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... "8. On the issue of classification whether the item in question is classifiable under heading 8431.00 as claimed by the appellants or it was held by the Department that this was classifiable under heading 4009.92. We observe the heading 40.09 refers hose assembly other than hardened rubber and in this case, whether the product was made of unhardened rubber or hardened rubber was neither considered or dealt with in the impugned order as it was pointed out by both sides. Accordingly, we are of the view that this matter will have to go back for re-consideration on this limited issue to the concerned Collector (Appeals) is directed to examine this issue particularly with reference to the product whether it was made of hardened rubber or unhard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard Shri R.K. Roy, ld. JDR for the Revenue and Shri K.K. Banerjee, ld. Advocate for the respondents. 7.The Revenue have contended that the order of the Commissioner (appeals) is solely based upon the test report of National Test House, Alipore. They have submitted that the test result has been arrived at by the National Test House on the basis of specifications laid down in the chemical engineers' handbook, whereas the same should have been tested in accordance with the HSN explanatory notes HSN laying down the criteria of hardened rubber. As such the Revenue has contended that the test certificate has got no connection with the way the product is to be classified as per HSN wherein hard rubber is clearly defined. 8. Shri R.K. Roy ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the same was made of hardened rubber or unhardened rubber. Accordingly the tests were carried by the National Test House, Alipore and it was based upon the test report of the said laboratory that the matter was decided in their favour by the Commissioner (Appea1s). He submits that it is not open to the Revenue to challenge the test report of the National Test House based upon some collateral evidences like that of the product manufactured by another unit. The test of the samples conducted on the product of M/s. Ranbir is irrelevant and cannot be applied to their product. Similarly he submits that merely because the hose pipes manufactured by other assessees were obtained by them under chapter 40, by itself cannot be made a gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hose pipes in question was made of hardened rubber. In other words they are challenging the test report of the National Test House on the basis of the gate passes of the other manufacturers and the test reports of the other similarly situate manufacturers. We are afraid that the evidences produced by the Revenue cannot be pressed into services for discarding the National Test House test report. It has been very clearly mentioned in the said report that the samples, which were taken by the Superintendent itself and forwarded to the laboratory met the requirment of hardened rubber, on comparison with the specifications laid down in chemical engineers' handbook. We also find that the Tribunal in the case of Sree Visalakshi referred by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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