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In line with the Marketing Guideline, 2005 and the subsequent amendment dated 15th January, 2007, the second sample of HSD collected by M/s. SGS India Pvt. Ltd. from the retail outlet of the petitioner was tested at Kanpur terminal on 17th December, 2007 in the presence of the authorised representatives of the petitioner. This sample also failed the Marker Test. However, the supply location sample at the Kanpur Terminal passed the Marker Test done on 17th December, 2007. Accordingly, another show cause notice dated 20th December, 2007 was issued to the petitioner to file a reply within seven days as to why action be not taken against the petitioner. The petitioner submitted a reply dated 17th March, 2008. A show cause notice dated 2nd May, 2008 was then issued to the petitioner for affording final opportunity to submit a reply and the petitioner submitted a reply dated 9th May, 2008.

Lastly, as regard your contention of re-drawing and re-testing of samples from your retail outlet is concerned, it is stated that re-sampling and re-testing of samples is not permissible under the laid down Marker Testing Procedures. It is further clarified that action as per the Marker Testing Procedure shall only be applicable in the subject case, since the product has failed during the marker test and there is no provision under the Marker Testing Procedure wherein subsequent to failure of product in the marker test conducted at the retail outlet, a fresh sample can be re-drawn.

In the light of the above, I find no irregularity in the marker test conducted at your retail outlet and you have failed to substantiate any of your allegations and contentions with any documentary evidence or otherwise.

In view of the failure of HSD sample in the Marker Test conducted at your RO on December 9, 2007 as well as of the 2nd HSD sample collected from your retail outlet in the marker test conducted at Kanpur Terminal Laboratory on December 17, 2007, adulteration of product at your RO with an intention to cheat customers has been proved beyond reasonable doubt.

"The HSD sample of the RO failed in marker test on 09.12.2007. RO retention sample also failed in lab test on 17.12.2007 while the corresponding supply location sample of last receipt (of challan dated 04.12.07) passed the test. TT retention sample was not available as recorded on the marker test report of 09.12.07 acknowledged by the appellant's representative. Thus, under the guidelines, adulteration by the appellant RO has been established.