9911796707
TMI Blog1990 (11) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... e, has confirmed the duty demanded vide show cause notice dated 21-1-1978 for a sum of Rs. 3,25,524/- for clearances of 1,62,762 kgs of Aluminium paste falling under Tariff Item No. 14-I(1) valued at Rs. 32,55,250/- for the period from 10-9-1977 to 30-11-1977 on the allegation that the assessee had manufactured and cleared it without payment of duty as per classification list approved from time to time and inasmuch as the Notification No. 65/59 dated 6-6-1959 had been rescinded by Notification No. 289/77 dated 10-9-1977 thereby such paste had become liable to duty. The assessee had been charged of contravention of Rule 9(1) of Central Excise Rules, 1944. 2. The contention and defence of the appellant-assessee had been that they had not cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn by Notification No. 289/77 dated 10-9-1977, the product became dutiable. The Assistant Collector has further held that the plea of the assessee for retest of the sample had been carried out and on both the occasions, the result shown was aluminium paste. He rejected the defence of the assessee pertaining to product not being of ISI specification. 3. The assessee s contention before the learned Collector (Appeals) had been that the aluminium paste had not been defined under Tariff Item 14-I(1) of Central Excise Tariff and in absence of such definition, one was to go by ISI specification 289-1963, where the product had been defined. They, relied on the test reports of ltalab (P) Ltd. to show that the product described by them as filter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cross-examination of the Chief Examiner who visited the factory as he felt, that the proceedings were not based on any of the findings and also observed that Chief Examiner had not submitted any report to the Assistant Collector and, therefore, there was no question of supplying the report to the assessee. The Assistant Collector in his order-in-original negatived the defence that there was any denial of principles of natural justice by not offering the Chemical examiner for cross-examination, as the proceedings were not based on the visit of the Chemical examiner. Relying on the observations of the Chief Chemist on the detailed letter of the assessee dated 26-2-1983, he held that the product is commercially known as aluminium paste. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the order of remand and therefore, the order was not sustainable. He submitted that the Assistant Collector had taken into consideration his personal observations and had made it a basis for classification of the product. In this connection, he submitted that such a basis for classification was not as per law and he cited the ruling of Knit folds Pvt. Ltd. [1989 (20) ECC 66] and Century Textile Industries Ltd. [1988 (37) E.L.T. 524]. He further submitted that there was no change in the method of manufacture and the Assistant Collector s submissions that the assessee had changed the process was an incorrect one. He further submitted that admittedly these intermediate products were captively consumed and therefore, were not entitled to dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also produced the manufacturing chart for our perusal. There is no dispute with regard to this aspect of the matter that this intermediate product is captively consumed by the appellants. The appellants had taken a contention that even if this product was considered to be falling under T.I. 14-I(1) but still it was not marketable and hence not dutiable. In support of their contention, they had relied upon the ISI Specification No. 289 -1963. This aspect of the matter had been considered by the Collector (Appeals) in the order of remand and had given specific direction to the original authority to examine the appellants contention from this point of view. The Assistant Collector had merely sought for the observation of the Chief Chemist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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