ORDER
Shiben K. Dhar, Member (T)
1. This order is directed against Order-in-Appeal No. M-1695/AHD/877/86, dated 7-8-1987 of Collector of Central Excise (Appeals), Bombay.
2. The appellants have filed a classification list No. 68 dated 4-3-1984 claiming exemption under Notification No. 34/84 for their sort No. 4204 with composition of 58% cotton plus 42% polyester. The sample on test was found to contain 60.79% cotton and 39.20% polyester. The Assistant Collector who issued the demand notice subsequently during adjudication proceedings withdrew the demand notice after allowing tolerance limit of 1% polyester fibre. On appeal by Revenue the Collector of Central Excise (Appeals) set aside the Assistant Collector’s Order holding that he could not take cognizance of the Board’s letter No. 261/19-12/76-CE-8 dated 25-2-1977 as quasi-judicial authority is not bound by such administrative orders.
3. Arguing for the appellants the Ld. representative of the appellant company submits that CBEC as far back as 1977 had laid down that allowance of 2.5% ± tolerance may be given in case of textile materials. Such tolerance was necessary since in a chemical test, considering the method followed and other factors, plus minus variance always occur. In fact, ISI itself under its Standard No. IS:11195-1985 has laid down 3% + tolerance in blend composition for textile material. This indicates that it is a tolerance limit recognised by the Trade and Industry and duly supported by authorities on the subject. He submits that in their own case Tribunal in its Final Order No. 110/1996-D, dated 16-2-1996 in similar situation relied upon this ISI Standard and allowed the tolerance. The Tribunal in that case relied upon the case of Ramnarayan Mills Limited v. Collector of Central Excise, 1991 (56) E.L.T. 477. In that case the Tribunal had held that there is a built in margin of error involved in tests. Some tolerance has to be allowed before final count is arrived at for raising the demand. They referred in this case to an earlier decision of the Tribunal in the case of Collector of Central Excise v. OCM (India) Ltd. – 1991 (53) E.L.T. 138 (Tri.), which had referred to CBEC letter No. 261/19/12/76-CX.8 dated 25-2-1977 prescribing the tolerance limit.
4. The Ld. DR reiterated the Department’s arguments and submits that the tolerance limit is not in built in the exemption Notification and, therefore, the Collector (Appeals) was right in disallowing such tolerance for the purpose of Notification No. 34/88 dated 1-3-1984. It is also well settled proposition of law that quasi-judicial authorities are not bound by administrative directions.
5. We have heard both sides. Notification No. 34/84, dated 1-3-1984 partially exempts cotton fabrics containing more than 40% by weight of polyester fibre. There is no dispute that, though the declaration indicated 42%, on test it was found to be only 39.2% In such cases, however, we find that it is not only Central Board of Excise and Customs, which vide their letter No. 261/19/12/76-CX. 8, dated 25-7-1977 recoginse the trade practice and permitted tolerance of 2.5% in such cases but ISI under Standard No. IS : 11195-1985 prescribed tolerance + of 3% in case of composition blend for textile material. In the very nature of things a margin of error is built in when any scientific determination is done in the measurement etc. and this margin of error varies from commodity to commodity and the methodology of the test adopted and the instruments used for that purpose. Considering that ISI also has accepted such + variance and prescribed a tolerance limit in case of textile we see no reason for not accepting such tolerance in determining the percentage in blend of the fabrics. We also note that the Tribunal in similar situations allowed the benefit of such tolerance in the case of the appellants themselves vide Final Order No. 110/1996-D, dated 16-2-1996. Thus, following the ratio of this order, we allow the appeal and set aside the impugned order.