2009 (4) TMI 293 - AT - Central Excise

Asbestos cement sheet - case of the department is that the appellants are not eligible for grant of exemption as the percentage of fly ash used in the manufacture of impugned goods is less than 25% by weight - we find that the department has not weighed the samples of asbestos cement sheets at any stage, either in the fully drenched condition or in a condition in which these are cleared from the factory. Hence, there is no factual basis on which the Department s contention regarding non-use of fly ash condition to the desired extent can be established. We also find that the appellants have maintained elaborate records as prescribed by the Board and in the Manual for Asbestos Cement Products. The department has not found any flaw in the accounts and records maintained by the appellants in respect of raw material consumption as well as production of the finished goods department s case is merely based on some theoretical calculation relating to a single day i.e. 19-12-96 without chemically testing a single sample for the entire period, is a classic example of booking a case on pure surmises. Assessee s appeal is allowed - Before parting with the case, we suggest that such exemption schemes may be designed in future with easily verifiable criteria and parameters, fully equipping the departmental officials and the departmental laboratory to be able to easily determine such criteria/parameters.

Summary

Issues: Grant of exemption based on fly ash content in manufacturing, verification of fly ash content, maintenance of records, absence of chemical examination, design of exemption scheme.

In this case, the Appellate Tribunal CESTAT KOLKATA considered the issue of grant of exemption based on the percentage of fly ash used in manufacturing. The department contended that the appellants were not eligible for exemption as the fly ash content was less than 25% by weight in the impugned goods. The department's case relied on a chart from a verification done on a specific date, but the appellants argued that the variation in the chart actually showed the fly ash content to be over 25% on average. The Tribunal noted that the department had not physically weighed the samples of asbestos cement sheets at any stage, leading to a lack of factual basis for their contention. The appellants had maintained detailed records as required, and the department had not found any flaws in their accounts or record-keeping.

Moreover, the Tribunal highlighted that the department's case was solely based on sheets fully drenched with water during curing, which was not in line with the finishing stage described in the Manual of Departmental Instructions. The absence of sending samples for periodic testing to the Government Test House at Alipore raised questions about the veracity of the department's claims. The appellants' submission regarding the raw material mix used to produce the final product, including the prescribed amount of fly ash, was not refuted by the department. The Chemical Examiner's inability to determine fly ash contents and the lack of samples tested at the National Test House further weakened the department's case.

Regarding the absence of chemical examinations, the Tribunal emphasized that without such testing, the verification of the appellants' claim on fly ash usage had to rely on their record of raw material and finished goods. The Tribunal found no issues with the appellants' record-keeping throughout the disputed period. Critically, the Tribunal noted that the exemption scheme lacked a clear procedure for field officials to verify the specific raw material usage percentage, leading to cases based on suspicion rather than concrete evidence. The Tribunal concluded that the department's case was unsubstantiated and set aside the impugned order, allowing the appeal.

In conclusion, the Tribunal recommended that future exemption schemes should have easily verifiable criteria and parameters to equip departmental officials for straightforward determination. This case serves as a reminder of the importance of concrete evidence and proper verification procedures in tax exemption cases to ensure fairness and compliance with the law.