Judgment :- RAMANUJAM, J. The Petitioners are manufacturers of yarn at Coimbatore. According to them they manufactured yarn having count of less than 50.8 -NF during the period between 13-3-1967 and 23-5-1967 and it is only on that basis they have paid the excise duty leviable on the cotton yarn produced by them during that period. The petitioners assert that as per the test conducted by them at their mill the yarn produced by them is below 50.8 NF counts i.e. below 51 NF and that, therefore, they are liable to pay excise duty only at the rate of Re. 1 per kilo. It is also stated that the Department levied excise duty only at the rate at the first instance but later the departmental authorities took 3 samples of the yarn produced by the petitioners on 13-3-1967 exercising their power under Rule 56. One of the samples so taken was sent for test to the Customs Chemical Examiner at Madras and that showed the yarn to be above 51 NF counts. As a matter of fact, the report of that Chemical Examiner, who analysed the first sample, showed that the count of yarn was found on actual analysis to be 64.7 NF and after allowing a tolerance of 2.5% the actual count of yarn was fixed at 63.1 NF. Based on the said test report of the Chemical Examiner, Madras, the Department proceeded to issue a revised demand for payment of additional excise duty at the rate of Rs. 1.25 per kilo on the basis that the petitioners are producing yarn of more than 51 NF counts. The petitioners not only resisted the said demand issued for additional excise duty, but also asked the Department to send the duplicate and triplicate samples also for test. At the request of the petitioners the remnant of the first sample as well as the duplicate and triplicate samples were sent for test to the Chief Chemist, Central Revenue, New Delhi. The Chief Chemist submitted a test report on 22-11-1967 giving the following observations: 2.The remnant of the first sample showed that the actual yarn count without tolerance was 65.4 NF. The analysis of the duplicate sample showed that the actual count of yarn without allowing for tolerance was 68.6 NF. The analysis of the triplicate sample showed that the actual count of yarn without allowing for tolerance was 49.4 NF. The analysis of the duplicate sample showed that the actual count of yarn without allowing for tolerance was 68.6 NF. The analysis of the triplicate sample showed that the actual count of yarn without allowing for tolerance was 49.4 NF. The Excise authorities relying on that part of the report of the Chief Chemist relating the remnant sample as well as duplicate sample, came to the conclusion that the yarn produced by the petitioners during the relevant period was more than 51 NF counts and that therefore, the petitioners were liable to excise duty at the rate of Rs. 1.25 per kilo. The Department, however, ignored the test report so far as it related to the triplicate sample. Though the petitioners honoured the demands issued by the Central Excise authorities for refund of that additional duty imposed on them on the ground that one of the samples had showed that the count of yarn was less than 51 NF that it is not open to the Excise authorities, to ignore the analysis of that sample and proceed only on the basis of the test report on the first 2 samples, that their own analysis done at the mills had showed the counts of yarn was less than 51 NF and that it is only on that basis they have sold the yarn at a price which was applicable to yarn of less than 51 NF counts. The petitioners' attempts to get refund of the additional excise duty have failed. The petitioners have, therefore, come to this Court to quash the order of the respondent refusing to refund the additional excise duty levied on them. 3.The main ground of attack against the order refusing to refund the additional excise duty is that the Excise authorities are not entitled to ignore a part of the report of the Chief Chemist, which showed that one of the samples taken contained yarn with actual count of 49.4 NF. And that portion of the test report is quite in accord with the test report conducted by them at the factory. It sis also contended that the petitioners have dealt with the yarn produced at the relevant period only as yarn of less than 51 NF counts and they have charged only the market price for that quality of yarn. And that portion of the test report is quite in accord with the test report conducted by them at the factory. It sis also contended that the petitioners have dealt with the yarn produced at the relevant period only as yarn of less than 51 NF counts and they have charged only the market price for that quality of yarn. It is contended by the petitioners that their conduct in selling the yarn produced as yarn of less than 51 NF counts cannot be ignored and on the basis of a portion of the test report alone they cannot be said to have manufactured yarn of more than 51 NF counts. In our view, the submission made by the learned Counsel appears to be correct. In this case 3 samples were taken on the same day. Though 2 samples show on analysis to be above 51 NF count, one sample actually shows the yarn to be considerably less than 51 NF. As a matter of fact, the third sample was found to be of 49.4 NF even without allowing for the tolerance. According to the learned counsel the Textile Commissioner under various circulars permitted 5% as a tolerance limit. But that the Excise authorities have allowed only 2.5% as the tolerance limit. It is not necessary for us to go into the question whether the tolerance limit adopted by the Excise authorities is correct or not in this case. We are of the view that as one of the 3 samples taken showed the yarn to be considerably below 51 NF counts and as the test said to have been conducted by the petitioners at the factory has shown the yarn to be only of less than 51 NF counts and as the petitioners have disposed of the yarn produced only on that basis, the basis for the finding of the Excise authorities that the yarn manufactured by the petitioners during the relevant period was above 51 NF counts cannot be accepted as conclusive. If really the yarn manufactured by the petitioner during the relevant period was above 51 NF counts, they could have sold the yarn for a considerably higher price and also collected the excise duty at the rate of Rs. 1.25 per kilo. If really the yarn manufactured by the petitioner during the relevant period was above 51 NF counts, they could have sold the yarn for a considerably higher price and also collected the excise duty at the rate of Rs. 1.25 per kilo. There is no reason as to why the petitioners should collect a lesser price for the yarn and also collect the excise duty at a lesser rate if in fact the yarn produced by them was above 51 NF counts. The fact that they have collected only a lesser price and the lesser rate of excise duty shows that the test conducted by them in the factory should have shown the counts to be less than 51 NF counts.We, therefore, find that the petitioners are entitled to the refund claimed by them. The Writ Petition is, therefore, allowed and the order of the respondent is quashed. There will be no order as to costs.