TaxTMI 
TaxTMI 
2013 (11) TMI 851
X X X X Extracts X X X X
X X X X Extracts X X X X
....iable under tariff heading 40082110 of the Schedule to the Central Excise Tariff Act, 1985. It is alleged, that the petitioner does not use resin in manufacture of the rubber sheets. The rubber sheets containing resin, also used for soles and heels, is separate item classifiable under tariff entry 40082910, and attracts 10 % duty. 3. On 23.07.2010 and 29.07.2010, a team of Central Excise officials visited the unit of the petitioner and drew samples to verify the ingredients of rubber sheets manufactured by the petitioner. They wrote letters, for ascertaining the chemical properties of one of the chemicals used by the petitioner, to the suppliers of the raw materials. They also sent the samples to the Chemical Examiner, CRCL, New Delhi; t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itioner did not accept the vague and unreliable test reports made. By way of abundant caution, the petitioner also submitted interim reply on 25.7.2011, to the show cause notice. The petitioner's request for re-testing the samples was rejected by the Additional (Technical), Central Excise, Kanpur, which decision was communicated to the petitioner on 18.8.2011 by Superintendent of Central Excise (Tech), Kanpur and subsequently by order dated 14.10.2011, the petitioner was informed that his request for retesting of samples has been declined by the Commissioner, Central Excise, Kanpur, as the test report is very clear, complete and there is no doubt and also since testing has been done by IRMRA, which is a Central Government recognised institu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the prescribed fees..." We are not prima facie satisfied with the reasons given for rejecting the request for retesting namely that the test report obtained by the department is very clear, complete with no doubt as the retesting has been done by I.R.M.R.A., which is a Central Government recognised institution. The right of retesting given by the statute cannot be prima facie denied on the ground that the reports obtained by the department are complete and that the department has no doubt, to its correctness. Shri S.P. Kesarwani, Additional Chief Standing Counsel prays for and is allowed a short adjournment to seek instructions in the matter. He will also produce complete test report on the basis of which a show cause notice has been ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ced in the interim order. We are informed that four samples were drawn in accordance with paras 8.1. to 8.4 of the instruction issued under the Central Excise Rules 2004, which are quoted hereunder for the purpose of the case:- "8. Procedure for testing and re-testing of samples drawn by the Department. 8.1 Except where there are special instructions for particular kind of samples, the representative samples from such or any lot must be drawn in quadruplicate in the presence of the owner/manager of the factory or his representative. 8.2 The quantities of excisable goods or materials taken for testing should be minimum necessary for testing and the Commissioner will, in consultation with the Chemical Examiner concerned, specify for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Examiner will be in position to indicate whether or not a remnant is fit for re-test and the Deputy/Assistant Commissioner of Central Excise or other adjudicating authority will in most cases be able to anticipate whether the assessee will demand a re-test or not. The test results should be speedily communicated to the Assessee. 8.7 The Department shall carefully preserve the remnant sample. 8.8 Whenever the assessee is dissatisfied with the test carried out by Chemical Examiner he can apply to Deputy/Assistant Commissioner of Central Excise concerned for re-test within 90 days from the date on which the test result was communicated to him after payment of the prescribed fees. The prescribed fee for retesting of the samples in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esting, comply with these conditions, it should be invariably allowed. The application may not be rejected on the ground that the testing was done by Government recognized independent labs, and that the test reports are clear and complete. 14. In the present case, we find that that the reasons given for denial of retesting are not relevant. The right of retesting, for which samples are specifically drawn by by the department in accordance with paras 8.1 to 8.4 of the of the instructions issued under the Central Excise Rules 2004, could not be denied, to the petitioner. 15. The writ petition is allowed, with directions that samples 'B' or 'C 'may be sent for retesting by the Central Excise Department and in case samples 'B' & 'C' are n....