Page 268 - ELT_1_1st April 2020_Vol 372_Part

154 EXCISE LAW TIMES [ Vol. 372

It has the characteristics of processed tobacco.
Moisture content (as such) = 18.8 % by Wt. (Eighteen decimal eight).
Ash content (on dry basis) = 12.4 % by Wt. (Twelve decimal four).
It does not contain added lime.
Sealed remnant returned herewith
C.No. 35-Cus/CRCL/2015-16/CL-467 DGCEI/16-11-2015, dated 30-11-2015
F. No. DGCEI/Bhzu/12004/09/2015, dated 27-10-2015, Test memo No. 04/2015
Report
The sample as received in unit packing with printed description “KP Red
Label” containing 60 pouches is in the form of yellowish brown cut pieces of
vegetable matter (cut bits of leaves)
It has the characteristics of processed tobacco.
Moisture content (as such) = 18.6 % by Wt. (Eighteen decimal six).
Ash content (on dry basis) = 14.9 % by Wt. (Fourteen decimal nine).
It does not contain added lime.
Sealed remnant returned herewith
C.No. 35-Cus/CRCL/2015-16/CL-468 DGCEI/16-11-2015, dated 30-11-2015
F. No. DGCEI/Bhzu/12004/09/2015, dated 27-10-2015, Test memo No. 05/2015
Report
The sample is in the form of dark brown coloured liquid with pleasant
odour. It is a preparation of tobacco and flavourant.
Ash content (on dry basis) = 0.3 % by Wt. (zero decimal three).
Loss on drying = 43.8 % by Wt. ( forty three decimal eight).
Sealed remnant returned herewith
19. Perusal of these reports indicates that all the chemical characteris-
tics required for determination of products as to whether ZST or CT have not
been discussed by the CRCL in its report. The CRCL has although considered the
criteria of moisture content and total ash content but there are neither of ZST nor
that of the CT as indicated in BIS specification specified in aforesaid paragraph.
In such a circumstance, not permitting the re-test of the samples by the adjudicat-
ing authority is not correct and legal. The Central Board of Excise and Customs
has published supplementary instructions under the Central Excise Act which in
Chapter 8.1 to 8.4 mandates that in case of any assessee is not satisfied with the
test result the same is required to be re-tested again by the CRCL. This has not
been followed by the adjudicating authority in the present case. Hon’ble Allaha-
bad High Court in case of Katyal Industries v. Union of India [2017 (346) E.L.T.
(218) (All.)] held that if denial of statutory right for re-testing of the sample
amounts to violation of principle of natural justice resulting into serious civil and
criminal liability. Hon’ble High Court has further hold that re-testing, for which
samples are specifically drawn by the Department in accordance with para 8.1 to
8.4 of instructions issued under Central Excise Rules, 2004 could not be denied to
the petitioner.
20. Further, we find that similar issue has come up for consideration
before this Tribunal in case of Flakes-N-Flavours (supra), Wherein it was observed

EXCISE LAW TIMES  1st April 2020  316