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2020 ] BORSAD TOBACCO CO. PVT. LTD. v. COMMR. OF C. EX. & S.T., AHMEDABAD-III 163

of the said samples. The Revenue cannot be allowed to take advantage of his
own wrong and demand the duty without affording opportunity of re-test or
cross-examination of the Chemical Examiner. The show cause notice has wrongly
alleged that during search on 27/28-10-2007 at their premises raw materials, viz.
raw tobacco, tobacco Dakhara, colour, katha and empty pre-printed plastic
HDPE bags were found. Firstly it is evident that the officers did not find raw ma-
terial like calcium oxide and flavouring agents. When there were no such raw
materials found, the question of adding or mixing calcium oxide or flavouring
agents does not arise. It was wrongly stated in panchnama that Katha was found
whereas the same was mud and the Revenue has failed to establish that the sub-
stance found during the search was allegedly katha. Their accounts fully sup-
ports the fact that there have never been any purchases of katha, flavouring
agents or calcium oxide any time. The burden is on the Department to show that
the appellant had purchased these materials. In absence of any materi-
al/evidence, it cannot be said that the appellant was adding these materials in
the impugned goods. There is no statement of the appellant that they were man-
ufacturing chewing tobacco by adding katha and calcium oxide. As per HSN Ex-
planatory Notes, chewing tobacco is usually highly fermented and liquored.
There is no such finding by the Chemical Examiner that the samples of the im-
pugned goods were highly fermented and liquored. In absence of any material,
the impugned goods cannot be classified as chewing tobacco. The officers did not
find any mixers in which the process of mixing of tobacco flakes with katha, cal-
cium and flavouring agents were allegedly undertaken. In absence of any mixer
in the premises, it is impossible to undertake the process of mixing of tobacco
flakes with any material like katha, calcium oxide and flavouring agents. With-
out prejudice, it is submitted that the sample has been taken in October, 2007 and
report of the same has been applied for the past period from 2005-06 to 2007-08.
It is submitted that SEPL had taken a portion of the premises of the appellant on
lease. For the purpose, a Lease Agreement has been duly entered into between
the appellant and SEPL and the copy of the said lease agreement was duly pro-
duced before the authorities. Shri Faizal Yunus Fazlani, director of SEPL, had in
his statement dated 30-11-2007 stated that SEPL have taken some portion of the
factory premises on lease basis from BTCPL and SEPL are processing Gadia
Powder known as snuff in the premises taken on lease. He also stated that M/s.
SEPL are procuring Calcutti from the farmers and bring into the leased premises,
which are sieved and grinded. The tobacco leaves are converted into powder
form, which is commonly known as a Powder in the market language. The Gadia
tobacco packed in 50 kg bags are transferred to SEPL unit at Borsad from where
it is exported. Sh. Rafique Sattar Kutchi Manager of M/s. BTCPL in his statement
dated 31-10-2007 has also stated this fact.
2.2 The entire case of the Department is based on the test report given
by the Chemical Examiner. In Test Report dated 28-3-2008, the Chemical Exam-
iner reported that the sample is other than snuff. The sample under reference
may be considered as manufactured tobacco. A perusal of the Test Report reveals
that the Chemical Examiner was not sure about the nature of the product;
whether manufactured or unmanufactured as he has opined that sample may be
considered as manufactured tobacco. He has not given any reasons or parame-
ters on the basis of which he has opined that the sample may be considered as
manufactured tobacco. Shri Faisal Yunusbhai Fazlani, authorised person of M/s.
SEPL in his statement dated 3-4-2008 has stated that he does not agree with the

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