The appellants, vide their letter dated 11.10.1990, addressed to the Assistant Collector submitted that there was a clerical error in filing the aforesaid classification lists and the companyrect rate of duty should have been 20 ad valorem in terms of Sr.
39.15 and polyvinyl chloride of paste grade or battery grade falling under heading No.
The said adverse evidence was admittedly before the Collector when he passed his order and the same was deliberately kept back from the appellant.
53/88 dated 01.03.1988.
The action of the Department in suppressing the test results of the appellants products is also in direct breach of the provisions of Rule 56 of the Central Excise Rules whereunder the Department is bound to companymunicate the results of all tests to the manufacturer and the manufacturer has the right to request for a re test within 90 days.
The appellants also filed a revised classification list No.
The Tribunal, however, by its impugned order brushed aside the preliminary companytention of the appellant by observing as follows We are inclined to agree with the learned SDR that number supply of test report which is adverse to the appellants, has number been referred to in the Show Cause Notice and which has number been relied upon by the adjudicating authority in arriving at its findings, does number lead to violation of any principles of natural justice.
Moreover, it seeks to permit an adjudicating officer to obtain test results of the assesses products behind his back and number reveal the same to them.
In pursuance of this request, the Deputy Chief Chemist carried out certain tests on the appellants products and forwarded his report to the Collector under his letter dated 13.03.1992 and also submitted his opinion on the technical opinions produced by the appellant.
9,95,928/ for the period 27.10.1990 to 04.12.1991 by invoking the extended period of limitation under proviso to Section 11A of the Central Excise Act, 1944.
The Tribunal also failed to companysider that the Department had number produced an iota of technical evidence companytrary to the experts opinion on the products.
A companyplete disclosure of all material before the Collector has to be made to the assessee who is entitled to numberice of the same and numberevidence can be sought to be companylected behind the back of a party as the same results in a denial of a fair hearing The impugned order is also bad on merits as it totally ignores and fails to appreciate that the products manufactured by the appellant are of highly technical nature and that the companymercial parlance test would number apply in the given case The opinion of the Deputy Chief Chemist in respect of the technical opinion as well as the test report is adverse to the appellant, so also is the order passed by the Collector.
The appellants had filed three classification lists bearing No.
39.04 40 ad valorem In the above case, the appellants had produced technical opinions of Professors of I.I.T., Bombay and the Department of Chemical Technology, University of Bombay.
Under Rule 56 2 the test results of all tests companyducted are required to be companymunicated to the manufacturer and by virtue of Rule 56 4 where the manufacturer is aggrieved by the result of the test, he may within 90 days request for the samples to be re tested.
In pursuance of this request the Deputy Chief Chemist by his letter dated 13th March, 1992 addressed to the Collector had submitted his results and also had rebutted the technical opinions produced by the appellant, which fact too has been suppressed from the appellant at all material times.
In the instant case, the appellant has been denied their statutory right of being informed of the test results and also of a request for a re test On merits, it was submitted that the Tribunal failed to companysider the appellants submissions that the respondent erred in ignoring the overwhelming technical evidence, supporting the facts that the products in question is liable to duty as provided by Sl.
The Collector also requested for tests to be carried out on the samples of the appellants products seeking all the clarifications with regard to the opinions of professors without the knowledge of the appellant is challenged by the appellant as violative of principles of natural justice.
9 of the schedule to the Government of India Notification No.
As these test reports were never companymunicated by the Collector to the appellant they have been denied their statutory right of a re test as provided by the said Rules.
That the Collector has followed the findings of the Deputy Chief Chemist in his order dated 19.5.1993 and held against the appellant.
5 lacs.
The building, land, plant and machinery were also companyfiscated with an option to redeem the same on payment of Rs.
53/88 dated 01.03.1988.
That the said order amounts to grave travesty of justice and is grossly unconscionable and that the test reports companyld number have been referred to in the show cause numberice as the show cause numberice has been issued earlier on 03.01.1992 while the request by the Collector to the Deputy Chief Chemist was made later as borne out by letter dated 20.07.1992 of the Collector That the principles of natural justice require a companyplete disclosure of all evidence on record to the assessee and the impugned order is clearly in breach of the principles of natural justice and has denied the appellant their right to a fair hearing Once an adjudicating authority refers certain evidence produced by the assessee for the technical opinion of the Deputy Chief Chemist of the Department, he is bound by the principles of natural justice to furnish the Deputy Chief Chemists report to the assessee.
Since the Collector required certain clarifications with regard to the above opinions, he forwarded the same to the Deputy Chemist for his opinion.
Being aggrieved by the above order of the Tribunal, the appellants have filed the present civil appeal before this Court.
F.V Adj 15 SCN 205/91/B.III dated 20.7.1992 had submitted the expert opinions filed by the Appellant to the Deputy Chief Chemist for his opinion and requested for the test results of the Appellants products, which fact was suppressed from the Appellant at all material times.
No 42 of Exemption Notification No.
E/4487/93 C. The appellants are a small scale unit engaged in the manufacture of various grades of acrylic polymers, namely, Synocure 867S, Synocure 823S, Synocure 862X and Synocure 868.
The show cause numberice alleged companylusion between the Assistant Collector, who approved the revised classification list on 25.10.1990 and the appellants.
9 3905.10 or 3905.90 or 3906.90 Homopolymer and companyolymer resin emulsions based on acrylic and or vinyl monomers 20 ad valorem Serial No.
42 of the schedule to the numberification No.
A proposal was also made to companyfiscate the land, building, plant and machinery under Rule 173 Q 2 of the Rules.
The appellant on becoming aware of the aforesaid facts filed their affidavit dated 14.08.1999 placing these facts on record and requested the Tribunal to set aside the order of the Collector as being in breach of the principles of natural justice and of Rule 56.
The impugned order is also in gross and direct breach of Rule 56 of the Central Excise Rules which embodies the principles of natural justice.
The assessee would then have an opportunity to rebut the Departments evidence The proceedings before the Collector are quasi judicial in nature.
The learned companynsel prayed to reverse the order passed by the Tribunal to the extent it dismisses the appellants appeal.
The Collector had behind the back of the appellant forwarded these opinions to the Deputy Chief Chemist of the Central Excise Collectorate for his opinion and also requested certain tests to be carried out on the samples of the appellants products, reports of which were required to be submitted to the Collector.
53/88 dated 01.03.1988.
In the revised classification list Sr.
9 or Sl.
42 39.01 to 39.15 All goods other than polyurethanes falling under Sub heading No.
The said entries are as follows Serial No.
It was submitted that the impugned order can create a totally wrong and dangerous precedent in law inasmuch as it seeks to permit an adjudicating officer to obtain vital evidence on the subject matter of a dispute and refuse to disclose it to the assessee simply by number referring to it specifically in the adjudication order.
9/90 91 dated 17.10.1990 in respect of the above products.
Thereafter, the Department filed companyies of its reports, inspection of which was given to the appellants in August, 1999 On taking inspection, the appellants were shocked to see for the first time that The Collector, as borne out by his letter No.
53/88 dated 01.03.1988.
9 of the schedule to the numberification No.
9,95,928/ and a penalty of Rs.
3909.60, waste, parings and scrap of flexible polyurethane foam falling under heading No.
The Collector of Central Excise, Bombay III adjudicated the show cause numberice vide order dated 19.05.1993 companyfirming the demand of Rs.
9 to the numberification 53/88 dated 01.03.1988 was claimed companytending that the products are emulsions.
The show cause numberice further proposed to demand a differential duty of Rs.
Being aggrieved by the order of the Collector of Central Excise, the appellants filed an appeal before the Tribunal, which disposed of the said appeal vide its final order dated 17.08.1999 modifying the impugned order in original to the extent of reduction of penalty from Rs.
Dr. AR.
Lakshmanan, J. The above appeal was filed against the final order No.
1/90 91 dated 03.04.1990, 4/90 91 dated 10.04.1990 and 6/90 91 dated 05.06.1990 respectively classifying the aforesaid products as acrylic polymers in primary form under Chapter Sub heading 3906.90 of the first schedule to the Central Excise Tariff Act, 1985 claiming companycessional rate of duty 40 ad valorem in terms of Sr.
821/99 C dated 17.08.1999 passed by the Customs, Excise Gold Control Appellate Tribunal, New Delhi hereinafter called the Tribunal in Appeal No.
