ORDER
G.A. Brahma Deva, Member (J)
1. Arguing for the appellants, Ms. Malini Sud, learned Advocate appearing for the appellant submitted that the dispute is in respect of textured or non-textured yarn. At the first instance the sample was drawn and according to the department the Deniers to the sample is 228.4. On request made by the assessee re-test was done which indicates that the Deniers is of 219.5. She submitted that there is variation in between these two reports and apart from that the method of testing as provided under Note 2 to Chapter 54 was not indicated in any of the sample reports. Furthermore, the party requested for cross-examination of the Chief Examiner since the method of testing was not mentioned in the relevant test reports, but same was not granted. Further, she contended that the samples were drawn from textured yarn but result was made applicable to both the textured and non-textured yarn and demand was raised accordingly.
2. Countering the arguments, Shri R.S. Sangia, learned JDR submitted that there is nothing wrong in drawing the sample with reference to the lot and applying the result to entire lot as it was observed by the Supreme Court in the case of The Government of India, Ministry of Finance, Department of Revenue & Insurance, New Delhi and Ors. v. Chirala Co-Operative Spinning Mills Ltd., [1980 (6) E.L.T. 174 (A.P.)] in support of his contention. Ms. Malini Sud, ld. Advocate referred the decision of the Tribunal in the case of U.K. Paints Industries v. Collector of Customs, Bombay reported in 1994 (74) E.L.T. 394 (Tribunal) wherein it was held that whenever method of testing is relevant, the method adopted ought to be mentioned in test report. She also referred to the decision of the Tribunal in the case of Nirlon Synthetic Fibres & Chemicals Ltd. v. Collector of Central Excise reported in 1992 (57) E.L.T. 125 (Tribunal) wherein it was held that frequency of drawal of samples being monthly, test result applicable for a period of one month from date of drawal of sample, for raising of demand of duty.
3. We have carefully considered the submissions. We find that there is some force in the arguments advanced on behalf of the assessee that whenever method of testing is relevant the method adopted ought to be mentioned in test report. The method adopted in testing the sample is not forthcoming in the relevant test report. In the circumstances since the method of testing has not been indicated in the test report, the adjudicating authority should have acceded to allow the cross-examination of the Chief Examiner which has not been done in this case. In the facts and circumstances, we are of the view that the matter will have to go back for reconsideration. Accordingly, we are remanding the matter to the jurisdictional Assistant Commissioner and to pass an appropriate order in accordance with law after providing an opportunity to the appellants. During the re-adjudication proceedings the appellants may raise all the other connected pleas which has to be considered by the jurisdictional Assistant Commissioner.
4. Thus, this appeal is allowed by way of remand.