2016 (2) TMI 147 - AT - Central Excise

Liability of the appellant for higher rate of duty based on the test reports of NTH - Held that - The purpose of the order was to equalize prices and secure supply of cement through out the country. The object is to see that the price is controlled or in other words to see that it does not go beyond the maximum price fixed. The quality of the cement for this rate is fixed as per the contract entered by appellant with DGS&D and the same is ascertained with periodical testing of samples. If a manufacturer sells the commodity at a price higher than the maximum price fixed, he will suffer the penal consequences. However, he may be free to sell at a price lower than the maximum price fixed. So also the manufacturer has to maintain the minimum quality as stipulated in the contract. If the quality of cement goes below, as per the samples testing, then he will have to incur consequences as stated in the contract. So the maximum price and the minimum quality of the commodity having been fixed in pursuance of the Cement Control Order notified by the Government; and when there is no evidence to show that appellant sold the cement of higher quality at a higher price, merely on the basis of certain test reports it cannot be concluded that appellant has committed any suppression of facts. There is no evidence to show that the appellant were in receipt of certain test reports indicating higher specific surface of 3500 CM2/g which would have established the case of mis-declaration. When the appellant were not aware of the test reports, there can be no mis-declaration of unknown facts. As such, we find that the demand against the appellant is not sustainable both on merits and on time bar. - Decided in favour of assessee

Summary

Issues:
1. Demand of differential central excise duty for cement cleared during a specific period.
2. Applicability of higher duty rate based on test reports indicating specific surface of cement.
3. Lack of knowledge regarding the quality of cement cleared.
4. Allegation of mis-declaration and extended period for demanding duty.

Analysis:
1. The case involved the demand of differential central excise duty amounting to Rs. 11,26,440/- for cement cleared during a particular period. The Revenue claimed that the appellant cleared cement with a specific surface of not less than 3500 CM2/g, whereas they paid duty applicable to ordinary Portland cement with a minimum fineness of 2250 CM2/g. The demand was based on test reports from the National Test House, Alipur, indicating higher quality cement clearances.

2. The main issue was the liability of the appellant for a higher rate of duty based on the test reports of the National Test House. The appellant contended that they were clearing ordinary Portland cement as per the DGS&D rate contract, and the quality was confirmed through regular testing. Out of 70 samples sent for testing, 14 indicated a specific surface of not less than 3500 CM2/g, forming the basis for the demand of differential duty. However, there was no evidence of the appellant receiving any extra amount for clearing higher quality cement, and the controlled nature of cement pricing was highlighted.

3. The appellant argued that they were unaware of the quality discrepancy in their clearances, as they had a rate contract with DGS&D specifying a minimum fineness of 2250 CM2/g. They claimed to have not received any information about the test outcomes from the National Test House, and the demand for duty was contested on grounds of lack of knowledge and absence of additional consideration received for higher quality cement.

4. The issue of mis-declaration and the demand for an extended period were also addressed. The Commissioner (Appeals) raised concerns about the correctness of the demand for an extended period, citing mis-declaration based on the specific surface of cement declared in the classification list. However, the judgment emphasized that without evidence of the appellant selling higher quality cement at a higher price or being aware of the test reports, the demand could not be sustained. The importance of adhering to the quality and pricing regulations under the Cement Control Order was highlighted to assess the validity of the duty demand.

This detailed analysis of the judgment highlights the key legal arguments, factual circumstances, and conclusions drawn by the tribunal concerning the differential duty demand for cement clearances during the specified period.