2001 (10) TMI 1104 - AT - Central Excise

Summary

Issues:
1. Exemption availability based on denierage limit.
2. Interpretation of law regarding demand for excess counts.
3. Power of Assistant Commissioner to condone delay in exceeding denierage limit.
4. Consideration of test results conducted by appellant.
5. Modification of order by Appellate Tribunal based on legal precedents.

Issue 1: Exemption availability based on denierage limit
The appeal was against the order denying exemption due to denierage exceeding the 4% limit as per the Notification. The Commissioner held that exemption was not available for the denierage yarn with +4.55% denierage for November 97. The Commissioner partly allowed the appeal for November 97 and remanded the case for December 97. The appellants challenged this decision.

Issue 2: Interpretation of law regarding demand for excess counts
The appellant cited a judgment by the High Court of Judicature at Madras in the case of CCE Coimbatore v. Combodia Mills Ltd., highlighting that demand can only be made for the quantity on the day for which the sample was drawn, not for the entire month. The absence of samples drawn from available stocks meant no duty could be demanded for the whole month based on presumption. The appellant also referred to a Tribunal judgment in SRF Ltd. v. CCE Chennai, emphasizing that test results conducted by the appellant could be relied upon, even if they show lesser denierage.

Issue 3: Power of Assistant Commissioner to condone delay in exceeding denierage limit
The Department argued that the Notification did not empower the Assistant Commissioner to condone the delay when denierage exceeded 4%. The Department supported the Commissioner's decision confirming the demand for November 97.

Issue 4: Consideration of test results conducted by appellant
The Tribunal considered the submissions from both sides and acknowledged the legal precedents set by the High Court of Judicature at Madras and the Tribunal in previous cases. The Tribunal directed the lower authority to demand duty only for one day, aligning with the legal principles established in the cited judgments.

Issue 5: Modification of order by Appellate Tribunal based on legal precedents
The Appellate Tribunal granted waiver of pre-deposit due to the issue's concise nature and proceeded with the final disposal of the main appeal. The Tribunal modified the Commissioner's order based on the legal precedents cited, directing duty demand for only one day and disposing of the stay accordingly.