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164 EXCISE LAW TIMES [ Vol. 372

report, as their product is un manufactured tobacco. The show cause notice and
the adjudicating authority had made a reference under letter F. No. 11/15-
93/P1/078-08-GR-V, dated 21-4-2008 from Ahmedabad and Chemical Examiner
from Vadodara sent a letter on next day itself on dated 22-4-2008 to the effect that
the sample mainly contains tobacco powder and in smaller quantities calcium
oxide, katha, flavouring agents. The letter dated 21-4-2008 has not been made
available to the appellant which is in violation of the principles of natural justice.
The letter dated 22-4-2008 of the Chemical Examiner suffers from the vice of
vagueness as it does not specify the percentage of katha, flavouring agents and
calcium oxide at all. Moreover, the Test Report dated 28-3-2008 has been com-
pletely silent about any composition of the samples. Therefore, the letter dated
22-4-2008 is not reliable as evidence. M/s. SEPL under their letter dated 15-5-
2008 on receipt of show cause notice along with which said letter dated 22-4-2008
was received, requested the respondent to get the sample tested from an inde-
pendent Chemical Examiner duly recognized by the Government since the
Chemical Examiner had given two different reports. The Adjudicating authority
did not allow the retest, which is in violation of the principles of natural justice
and the impugned order is liable to be set aside. The request for retesting of the
sample was made again vide letter dated 29-7-2008 and in reply dated 6-11-2008
to the earlier show cause notice. The respondent, however, did not get the sam-
ple retested. Shri Faisal Yunus Fazlani of the appellant had also requested in his
reply dated 14-7-2008 to get the samples retested as two different reports had
given by the Chemical Examiner. Similarly, Shri Arif Abdul Kader, director of
the appellant, in his reply had requested the Commissioner to get the samples
retested from independent Chemical Examiner duly recognized by the Govern-
ment. By relying on the test report and letter dated 22-4-2008 without getting the
samples retested, principles of natural justice were contravened in the first round
of adjudication and the first adjudication order was set aside by this with the di-
rection to have the sample retested, which was declined by the CRCL in view of
shelf life of the sample having been expired as the department had not preserved
the samples properly. M/s. SEPL had sent a sample of the impugned product to
Tobacco Projects, Anand Agricultural University, Anand to test. Dr A.P. Patil,
Unit officer has opined in his report dated 18-12-2007 as under :
“The sample is of size from 5# to 30#. No additive seems to be added in it
and it is purely unmanufactured tobacco.”
2.3 The Commissioner in his order has taken into consideration the
opinion given by the Additional Commissioner (Preventive) on the classification
of the goods, whether manufactured or unmanufactured which is patently incor-
rect inasmuch as the opinion of the Additional Commissioner (Prev.) in deciding
the classification is beyond his jurisdiction and authority. He submitted that the
adjudicating authority has erred in holding that the issue of classification of dis-
puted product of the appellant can be decided on the basis of Test Report given
earlier by the Chemical Examiner observing that the said Test Reports have at-
tained finality. The adjudicating authority is wrong in holding that the appellant
never applied for retesting of the samples as required under Clause 11 of the
C.B.E. & C. Supplementary Manual and that the appellant cannot make the De-
partment responsible for not doing retest of the samples of the impugned goods.
He also erred in holding that the report received from the Chemical Examiner,
Central Excise Laboratory, Vadodara has attained finality to decide the classifica-
tion issue of the impugned goods in view of the retesting of the samples over a

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