JUDGMENT
S.L. Peeran, Member (J)
1. All the appeals arise from four separate orders in original and the issue is common. The party’s request for taking up their appeal alongwith the Revenue appeals is accepted by allowing their early hearing application.
2. Revenue appeals and the party’s appeals are taken up together for disposal as per law in view of the fact that all the appeals arise from common orders in Appeal Nos. 103 & 106/2001 dt. 21.9.2001 by which the Commissioner (Appeals) has held that the party’s contention for granting of benefit of cum duty price is required to be accepted. In the impugned order, he has also relied on the judgement of Hon’ble High Court of Judicature at Chennai rendered in the case of Cambodia Mills, 2001 (128) ELT 373 (Mad). He has noted that in terms of this High Court orderthe assessee is required to pay duty only in respect of Yarn manufactured on the day’s sample and the stock lying on that day.
3. Revenue is aggrieved with a part of the order on the ground that the decision of the Tribunal rendered In the case of Sri Chakra Tyres 2002 (80) ECC 588 (LB): 1998 (108) ELT 361 is under appeal before the Hon’ble Apex Court. Likewise they contend that the Apex Court has dismissed the Revenue appeals against the judgment of the High Court of Judicature at Chennai in the case of Cambodia Mills Ltd. (supra) as the Revenue implications were less and has not disposed of the appeal on merits. They have upheld the order and contend that the Commissioner (Appeals) ought to have confirmed the order in original which confirmed the duty demand for the clearances for the period 8.9.98 to 7.12.98. The assessee’s contention is that the test result of the samples obtained from the Chemical Examiner and Chief Chemist were in variance. Both the authorities had not conducted the test in terms of ISI Specification. They contend that the third sealed sample which was given to them was sent to IIT, New Delhi for testing the sample. The test result and the certificate disclosed that the sample was In sealed condition and that the results were in their favour. It is contended that the results, in any case, cannot be applied to the entire stock as the samples drawn in their case do not represent to the entire stock but represented only to the day’s production. It is also stated that the Commissioner (Appeals) has not examined their contention and relied on the test results obtained from the III, New Delhi. Therefore, they seek for modification of the order. They also rely on the judgment of this Bench rendered In the case of Superfil Products Ltd. v. CCE, Chennai 2002 (48) RLT 319 (CEGAT-CHE) which has upheld this very contention of applying the test result only for the day’s production In the light of the High Court of Chennai judgment referred in the case of CCE, Coimbatore v. Cambodia Mills Ltd. 2001 (128) ELT 373 and SRF Ltd. v. CCE, Chennai 2001 (45) RLT 190.
4. Heard Shrl K. Sanakararaman, Ld. Counsel for the appellants and. Shri C. Mani, Ld. DR for the Revenue. Revenue contentions are same as noted supra. Ld. DR submits that the Revenue appeals are required to be allowed for the reasons stated in the grounds of appeal. Ld. Counsel challenges the order in so far as confirming the demand on the entire stock is concerned. In support of his contention, he has filed a statement showing the result of individual test results, which is reproduced herein below.
STATEMENT SHOWING RESULTS OF TESTS
SI. No.
Appeal No.
Declared Deniers
Deniers as per Chemical Examiner’s Report
Deniers as per Chief Chemist’s Report
Deniers as per I. I.T’s Report
1,
E 1217/01
210
221
Not Retested
204.6
2.
E 1218/01
210
242.6
252.0
203,4
330
375.1
388.0
324.5
840
937,2
977,4
826.8
3,
61215/01
420
450
460
419,7
4.
E/1216/01
210
237.0
235.5
206,2
330
374.7
371.7
322.7
420
479.6
473.2
421.4
640
960.9
952.5
819.3
4.2 Referring to the above table, the Ld. Counsel submitted that it was an imperative on the part of the Ld. Commissioner to have examined this issue which he has not done. He further contends that the test result of IIT, New Delhi should be given credence and the benefit as claimed by them should be extended. In this regard he relied on the judgment of the Tribunal which has upheld the test result obtained from IIT, New Delhi as in the case of Superfi Products Ltd. v. CCE, Chennai 2002 (48) RLT 319.
4.3 We have examined the Revenue’s contention and the grounds of appeal made by the Revenue and the Assessee. The revenue is aggrieved with the impugned order for two reasons, namely.
(I) for granting the benefit of valuation on the basis of cum duty price. On this issue the Revenue has stated that the judgment of the Tribunal rendered In the case of Sri Chakra Tyres Ltd. is pending before the Apex Court.
5. We have considered the Revenue’s submission and noticed the issue is no longer res Integra. The Apex Court has already disposed of the appeal by upholding the Larger Bench’s decision rendered in the case of Sri Chakra Tyres and in the case of CCE v. Maruti Udyog Ltd. 2002 (80) ECC 249 (SC) : 2002 (141) ELT 3 (SC). Therefore, we negative the contention raised by the Revenue on this issue.
(ii) The second ground raised by the Revenue is that the test result should be applicable to the entire period from 8.9.98 to 7.12.98 and not for the day’s production and to the stock lying in the factory. They have also contended that the test result cannot be brushed aside lightly unless it is demonstrated that it Is erroneous as held in the Apex Court in the case of Reliance Cellulose Products Ltd. v. CCE, Hyderabad 1997 (93) ELT 646 and in the case of Garware Marine Industries Ltd. v. CCE, Aurangabad 2001 (127) ELT 734.
6. We have considered the plea and the judgments cited above. We notice that the assessee have also challenged the test result and have pointed out that the test results obtained from the Chemical Examiner and Chief Chemist is not acceptable for the reasons that there is variance in the test result as shown in the table. For that reason the assessee got their samples tested from IIT, New Delhi which is in terms of ISI Standard. Therefore, there Is reasons to take a view that the test result obtained by Revenue is assailable. In so far as the revenue plea is concerned i.e. the test result Is required to be applied for the entire period, we notice that the Commissioner (Appeals) has rightly observed that it cannot be done so in the light of the Madras High Court Judgment rendered In the case of Cambodia Milts Ltd. This judgment has been upheld by the Apex Court. The ratio of the judgment rendered in the case of SRF Ltd. v. CCE is also applicable to the facts of the case for that reason we cannot find fault in the Commissioner’s findings holding that the test result is not applicable to the entire period on which duty has been confirmed. For this reason, we do not find any merit in the Revenue’s Appeals and hence all four Revenue appeals are dismissed.
7. In so far as the assessee appeals are concerned, the ground raised by them is that the Commissioner (Appeals) has not examined their contention that the test result obtained from IIT, New Delhi has been given credence. They have also pointed out the variance in the test result obtained from the Chemical Examiner and the Chief Chemist. They also contend that the test result cannot be applied for the entire stock. It is also pointed out that even in the case of Cambodia Mills Ltd. (supra), the Hon’ble High Court of Madras held that the test result could apply to the entire stock if the samples had been drawn from the said stock. It is contended that the samples were not drawn from the entire stock but it was drawn only from one day’s production.
We have considered these pleas and we are of the view that these pleas ought to
have been examined by the Commissioner and should have given a specific finding
as to whether the assessee’s test result can be accepted by the Revenue. The
Commissioner should have also examined further as to whether the test result can
be applied for the entire stock or for the day’s production. There is no clear finding
on this issue hence we deem it proper to remand the assessees appeals to the
Commissioner (Appeals) by holding that their claim for the benefit sought by them
on the basis of the test result obtained from IIT, New Delhi and their plea that the test
result is to be accepted and the duty is not leviable and that it has to be restricted to
the day’s production is required to be reconsidered in the light of the judgments
rendered by this Bench. Therefore, Party’s appeals are allowed by way of remand
to the Commissioner (Appeals) for de novo consideration. The assessees are entitled
to reagitate the issue before the Commissioner (Appeals) to the extent indicated
above. Thus all these eight appeals are disposed of accordingly.