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40. The learned AR appearing for Revenue, in response to the submission made on behalf of New Kishan Cement, submitted that the learned Commissioner has passed the reasoned a detailed order and in view of the findings in the impugned order, the demand of duty and imposition of penalty was wholly justified. As regards the test report, it was submitted before us that the said report was given by NSIC which revealed that the samples drawn from the factory premises of New Kishan Cement and Major Cement was coke dust and not pet coke. He also supported the findings of the learned Commissioner that the narration in Panchnama dated 26.4.08 does not speak of any drawal of samples from the premises of New Kishan Cement and Major Cement. He has also supported the findings of the Commissioner that the Director of New Kishan Cement, Rajan Vadalia has agreed with the sampling procedure Even while his statement was being recorded after a period of 5 months, the Director never disputed the sampling procedure. On a specific query being asked to the learned AR by this Bench during the course of arguments that when there is a specific mention in the Panchnama dated 26.4.08 regarding drawal of samples how can it be said that no samples were drawn on the said date. The learned AR, to this query, has merely supported the stand of the Commissioner and is unable to give any satisfactory explanation. It was the submission of the learned AR that the department has placed overwhelming evidence on record to show that the material lying in the premises of New Kishan Cement and Major Cement was Coke Dust and not Pet coke. The test report of the NSIC coupled with documentary evidence recovered from the premises of Kathiawad Industries and the statement of Shri Kuldip Sinh Basiya, partner of the supplier establishment shows that the goods lying in the premises of New Kishan Cement and Major Cement were actually coke dust and not pet coke. The learned AR appearing for Revenue while dealing with the evidence of suppliers of Pet coke namely, Hindustan Exports, Radhe Vyapar Ltd, Jayshree Vyapar Ltd, Karan Chemicals and Karan Marketing, submitted that under the Cenvat Credit Rules, the burden of proof regarding admissibility of Cenvat Credit was on the manufacturer. New Kishan Cement and Major Cement have failed to submit any documentary evidence to show that they have received pet coke accompanied by a test certificate from an accredited laboratory. He also submitted that documentary evidence in the form of data contained in the hard disk of Hindustan Exports and Kathiawad Industries reveals that they were supplying non-cenvatable items to New Kishan Cement and Major Cement.

43. Now, proceeding further on this aspect we find that test report of samples drawn on 3.5.08, cannot be given much credence. We are unable to understand in the present case that why the samples drawn on 3.5.08 has been sent for testing to NSIC when there are reputed government laboratories for the undertaking the concerned test. The learned AR has also not been able to give any reasonable explanation in this regard. We find that New Kishan Cement and Major Cement have also disputed the methodology adopted for testing and drawing of samples. Our attention was drawn by the ld.Counsel during the course of hearing to the BIS standards specified for testing the pet coke. We find that in the BIS standards it has been clearly mentioned that samples collected from the surface of coke in piles, pins, cars, ships or barges are, in general, unreliable because of size segregation and should not be used for determining conformance to specifications unless the purchaser and the seller agree. We also find that BIS standards also specify the minimum quantity of sample of pet coke required to be drawn for testing. We find from impugned order that the Commissioner has not disputed the BIS standards. The Commissioner has sought to reject the submissions made with regard to BIS standards by stating that Shri Rajan Vadaliya, one of the directors of New Kishan Cement, in his statement dated 14.10.08 has agreed with the sampling procedure followed on 2.5.08 and has not requested for re-drawal of samples. This finding has to be out rightly rejected. We have gone through the translated version of the statement given by Rajan Vadaliya. He has no were agreed to the sampling procedure. He has only stated that he has read the Panchnama and gives his dated signature; this averment cannot be treated as an agreement to the sampling procedure. Further we also find that the Commissioner has brought no concrete material on record to disbelieve the Test Report of RIL relied upon by New Kishan Cement and Major Cement and of the opinion from Quality Services and Solution. The Test Report from RIL clearly indicates that sulphur level and calorific value were always mentioned while determining the nature of coke. The opinion from Quality Services and Solution also states that it could not be ascertained merely on the basis of ash content, volatile matter and fixed carbon, as to whether the coke was pet coke or not. Further, we also find that there are two test reports regarding the same lot of Coke from the premises of Major Cement. The ash content in both the reports is widely varying. In one of the report it is 50.90% and in the other it is 16.80%. We, therefore, agree with the submission of the ld.Counsel that Test Report dated 7.5.08, is totally unreliable and do not find any merit in the finding entered by the Commissioner, in this regard.