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TMI Blog2009 (4) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... demand. 2. The 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. The case is primarily supported by the chart relating to verification done on 19-12-96, though the period in dispute is from July, 1992 to January, 2003 (except the period from 28-2-93 to 11-3-93, June 1999 and March to April, 2000). A copy of the same is annexed. 3. During detailed hearing of the case, it transpires that even on 19-12-96, none of the samples were actually weighed but the weight was derived from the standard weight adopted by the appellants themselves. Moreover, it is also pointed out by Shri Bagaria, ld. Sr. Advocate that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched with water while the same are undergoing curing. In paragraph 5.9 of the Manual, it is also mentioned that the samples should be sent for periodical test to the Government of Test House at Alipore, but there does not appear to be any record of samples having been drawn and sent for such test at Alipore. 7. It has been submitted on behalf of the appellants that they used raw material mix of 783 kgs. which includes 274 kgs. of fly ash to produce 1 MT of final product. The submission in this regard has not been controverted by the department which goes to show that the appellants have used the prescribed amount of fly ash after taking into account the fact that the final product contains large quantity of water. It is also evident that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any procedure for the field officials to enable them to verify the extent of such use. In the absence of an easily verifiable procedure through which the percentage of specific raw material used can be checked, the Revenue officials have been left with no alternative but to book a case on suspicion and surmises which cannot meet the test of law in a Tribunal or Court. This case, which has been made to cover a long period spanning from July, 1992 to January, 2003, 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. 10. As a result, we have to hold that the department's case has no leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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