ORDER
S.L. Peeran, Member (J)
1. This appeal arises from order-in-original dt. 22-8-1986 passed by ld. Collector, Jaipur. By this order the ld. Collector has confirmed a differential duty of Rs. 4,97,195.49 under Section 11A of the Central Excises & Salt Act, 1944 read with Rule 9(2) of Central Excise Rules, 1944. He has also imposed a penalty of Rs. 10,000/- under Rule 173Q of the Act.
2. In his brief order, the ld. Collector has held in para 17 of his order as follows :
“17. The samples of the 17 lots have been tested twice, once by Dy. Chief Chemist, Bombay and another by Chief Chemist, Central Revenue Control Laboratory, New Delhi. With the exception of the three lots namely 443, 482 and 505, the test report of the Dy. Chief Chemist, Bombay, was confirmed by the retest report from the Chief Chemist in respect of the other 14 lots mentioned in the show cause notice. No differential duty was involved in respect of lot No. 409, in view of the Chief Chemist retest report. These facts cannot be assailed by the mere suspicion of mistaken mix-up of samples as contended by M/s. Aditya Mills. The Chief Chemist’s test report cannot also be controverted by the NITRA’s test report on the samples kept with the mills, when retest was conducted by the Chief Chemist at the request of the party and the findings of the Chief Chemist were clear and conclusive.”
3. The appellants are aggrieved with these findings. They contend that the department having agreed to send the samples to NITRA, should have accepted its reports. The results of the department obtained earlier were contradictory and not conclusive and therefore, they had accepted their plea to send the sealed samples to NITRA, should have accepted the same. As per the NITRA’s report only samples of four (4) lots numbers did not meet the declarations. Therefore, the ld. Collector was not justified in demanding duty for 13 lot numbers on the basis of the Chief Chemist’s report, which the department itself had not accepted. It is also their plea that there were no mala fides in submitting the declaration and had no intention to evade duty. Therefore, in the facts and circumstances of the case, the demand for duty should be set aside as time barred. In the alternative, it is their prayer that duty could be demanded only on the basis of NITRA’S report, which stated that only four samples were not as per declaration. It is their plea that the ld. Collector has not given any reasons for confirming the duty for larger period, nor considered their plea for not imposing the penalty.
4. We have heard Sh. Dushyant Dave, ld. Advocate for the appellant and Shri R.K. Kapoor, ld. SDR for the respondents.
5. Shri Dave, ld. Advocate reiterated the pleas recorded supra and submitted that the impugned order should be set aside. The following rulings were relied :
(i) Ramnamyan Mills Ltd. v. Collector of C. Excise 1991 (56) E.L.T. 477
(ii) The Government of India v. The Chirala Co-operative Spinning Mills Ltd. 1980 (6) E.L.T. 174
6. Ld. SDR reiterated the findings and contended that the ld. Collector was justified in rejecting the NITRA’s report.
7. We have carefully considered the pleas and have perused the records. The department had accepted the plea of the assessee for getting the sealed samples tested with NITRA, on the contradiction and insufficiency of the results of the Dy. Chief Chemist and that of the Chief Chemist, as pointed out by the assessee. Therefore, the report of NITRA assumed importance and requires acceptance. The ld. Collector has not given any convincing reasons to reject the NITRA’s report. We find that the ld. Collector has not considered the plea for extending the larger period and also not considered the plea of bona fides urged by the assessee, for not extending the larger period and also for not imposing the penalty. As the order is not a detailed one and without application of mind, the same is required to be set aside and remanded for de novo consideration, to consider the pleas of the assessee and also to consider the plea of accepting the NITRA’s report.
8. Thus, the appeal is allowed by remand.
