TaxTMI 
TaxTMI 
1988 (4) TMI 236
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....r Kerosene Tl No. 7 Motor Spirit Tl No. 6 Refined Oil Diesel T.I. 8. (2) 12-12-72 to17-1-73. 14-2-1974 do do Diesel Oil T.I. No. 9. (3) 18-1-73 to 11-2-73 16-1-1974 do do do (4) 17-3-73 to 16-4-73 6-3-1974 do Refined Diesel Oil T.I. 8. Refined Diesel Oil T.I. 8. (5) 25-9-73 to9-10-73 24-5-1974 do Motor Spirit T.I. No. 6 do Collector (Appeals) has rejected the appeals filed before him by the appellants against the Orders-in-Original of the Assistant Collector on the ground that the demands were confirmed on the basis of the test results of the samples drawn from the goods manufactured by the appellants and as such, there was no merit in the appeals. 2. The appellants prayed for introduction of certain additional documents to which no objection was raised by the learned J.D.R. for the respondent. Additional documents were, therefore, allowed to be introduced as evidence. 3. Arguing for the appellants Shri A.F. Patel, learned Advocate has stated that Oil and Natural Gas Commission obtained natural gas from the wells in Bombay High. Pure gas is sold to Electric Supply Companies. Liquid residue was sold as Condensate by Open Tender. One buyer of Condensate....
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....he learned Advocate is that samples were drawn on different dates and the same were tested, but complete test reports were not furnished to the appellants. Only extracts from the test reports were forwarded to them. Samples were also retested by the Chief Chemist. There was wide variation between the results found on the original test and the retest by the Chief Chemist. The test reports are not, therefore, reliable and classification cannot be done on the basis of the same. He has relied on the decision of Bombay High Court reported in 1983 ELT 2200 in which it was held that when the sample showed two results it was not permissible for the Department to select the one which suits the Department. In this connection, the learned Advocate has drawn our attention to the test results at pages 25, 30, 42, 53, 54, 67, 68, 89 and 98 of the Paper Book filed by the appellants. 5. The learned Advocate has argued that the demands for differential duty were issued under Rule 10 of the Central Excise Rules. He has stated that demands at serial Nos. 1 & 2 were barred by limitation as the show cause notices were issued after the expiry of one year from the relevant dates. He has also stated that....
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....g such alcohol when denatured or otherwise treated), which, either by itself or Inadmixture with any other substance, is suitable for being used as aforesaid. Explanation I. - "Mineral Oil" means an oil consisting of a single liquid hydrocarbon or a liquid mixture of hydrocarbons (except for associated impurities) derived from petroleum, coal, shale, peat or any other bituminous substance, and includes any similar oil produced by synthesis or otherwise. Explanation II. - "Flashing point" shall be determined in accordance with the tests specified in this behalf in the rules made under the Petroleum Act, 1934 (30 of 1934)." "7. KEROSENE - Kerosene, that is to say, any mineral oil (excluding mineral colza oil and turpentine substitute) which has a flame height of eighteen millimetres or more and is ordinarily used as illuminant in oil burning lamps. Explanation I. - The expression "mineral oil" has the meaning assigned to it in Explanation I to Item No. 6. Explanation II. - "Flame height" shall be determined in the apparatus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in the Official Gazette." "8. REFINED DIESE....
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....Mineral oil of dark brown colour having flash point below 76°F and boiling point range of 138°C to 242°C (communicated to appellants on 13-2-1973 vide page 25 of paper book). (ii) As per Chief Chemist, Central Revenues Control Laboratory, New Delhi, on re-test of sample :- Dark brown coloured mineral oil: Flash point = 101 °F Viscosity by RW.1, Viscometerat 100°F = 27.5 sec. Flame height = 14 mm Bituminous substance % by weight = 0.24% Distillation Range = 141°C to 286°C (communicated to appellants on 22nd February, 1980 vide page 30 of Paper Book) (II)14-2-1974 12-12-1972 to 17-1-1973 12-12-1972 Test results: (i) As per Chemical Examiner, Central Excise, Baroda : Mineral oil of dark brown colour having flash point below 76°F and boiling point range from 120°C to 317°C (communicated to appellants on 29.8.73 vide page 39 of the Paper Book). (ii) As per Chief Chemist, Central Revenues Control Laboratory, New Delhi: Flashing point = 150°F Flame height == 7mm Viscosity by RW 1, Viscometer at 100°F = 29.5 sec. Distillation Range = 163-275°C % Carbon residue by rams bottom apparatus = 0.29% (communicated to the appel....
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....ous substance =0.18% Distillation Range = 138 to 275°C (vide page No. 68 of Paper Book) (communicated to the appellants on 2.6.79) (v) 24.5.74 25.9.73 to 9.10.73 25.9.73 Test results : (i) As per Chemical Examiner, Central Excise, Baroda :- Dark coloured mineral oil. Flashing point below 76°F Distillation Range 130 to 318°C (communicated to appellants on 30.3.74 vide page No. 89 of the Paper Book). (ii) As per Chief Chemist on re-test of sample : Dark brown coloured mineral oil. Flashing point = 99°F Flame height = 14mm Viscosity by R.W.1, Viscometer at 100°F = 27.9. sec. Bituminous substance % by weight = 0.25% Distillation Range = 140°C to 266°C (communicated to appellants in February, 1980 vide page No. 98 of Paper Book). 8. Samples were re-tested by the Chief Chemist at the request of the appellants. They are, therefore, bound by the results of re-test. Having requested for re-test, they cannot now take the plea that the result of re-test of the samples cannot be relied upon. This plea of the appellants is, therefore, rejected. The classification of the goods will have to be decided on the basis of the result of re-test irrespect....