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168 EXCISE LAW TIMES [ Vol. 372

calcium oxide, katha and flavouring agents. Whereas the director and the super-
visor of the appellant company in their statements dated 3-4-2008 had clearly
disagreed with the chemical examiner report and even M/s. SEPL, who was also
made co-noticee in the subject show cause notice, requested for retesting of the
samples, however, no such exercise was undertaken by the Revenue, which leads
to the inference that the Revenue did not allow the principles of natural justice to
be followed. The report dated 28-3-2008 of the Chemical Examiner did not state
the contents of the products in question and it appears from the show cause no-
tice that the communication dated 22-4-2008 was in response of the communica-
tion made by the Revenue vide letter F. No. 11/15-93/P1/078-08-GR-V dated 21-
4-2008 which was not even provided to the appellant. The appellant should have
been made aware of the fact as to what communication did the Revenue made to
the Chemical Examiner that made him change the composition of the impugned
goods vide letter dated 22-4-2008. Whereas in his report he stated that the 28-3-
2008 he had shown the goods to be coarse brown powder, in his communication
he says that the goods are containing katha, CaO and flavouring agent. If the
goods contain Katha, CaO and Flavouring agent, it would not have remained
coarse as the presence of such items would have led to powder becoming soft
and lacquered. It is only this communication dated 22-4-2008 which resulted into
impugned. On the other hand, if any communication was made by the Depart-
ment after 28-3-2008 with the Chemical Examiner, it was necessary for them to
bring such communication on record since such communication only led to
Chemical Examiner to change his views on composition and to state that the
goods in question are mixed with calcium oxide, katha, flavouring agents etc. In
such case, the impugned order passed on the basis of chemical examiner’s com-
munication dated 22-4-2008 is not correct. It is coupled with the fact that the ap-
pellant M/s. SEPL had produced the test examination report of product which
was done by the Tobacco projects, Anand Agricultural University, Anand for
test. DR. A.P. Patil, Unit officer in his report dated 18-12-2007 has informed that
the “The sample is of size from 5 # to 30 #. No addictive seems to be added in it
and is purely un - manufactured tobacco”. Thus the opinion clearly states that
the goods are unmanufactured tobacco. Further the Chemical Examiner report
cannot be relied upon in the light of the fact that when M/s. SEPL had applied
for retest of the samples by an independent entity, the department did not accept
such request. We also find that there is no fault of the appellant if the samples
could not be retested after 9 years only due to lacuna on the part of the Revenue.
We also find from the statement of the directors and supervisors and employees
of the appellant as well as M/s. SEPL that they were purchasing “Culcutti tobac-
co/raw tobacco from farmers and undertook during, cutting crushing and grind-
ing of tobacco and convert the same into “Gadia Powder”, which was packed in
50 kg bags. We also find that no evidence has been adduced by the Department
to show that the appellants purchased any katha, calcium oxide or flavouring
agents. Even the chemical examiner in his report never stated that the goods
were fermented and subsistence like calcium oxide, katha were added to the
goods in order to hold the goods as chewing tobacco; the process of chewing to-
bacco is not complete unless it is fermented and liquored. Whereas the report of
the chemical examiner says that the same is a coarse brown powder and if the
same would have been chewing tobacco, it would not have been coarse brown

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