9911796707
TMI Blog1994 (9) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 to receive Benzene and Toluene (hereinafter referred to as `the inputs ) at concessional rate of duty for special industrial purposes, were alleged to have been removing these inputs without carrying out any process on such inputs and without using the same in their factory premises for the intended use specified in Col. No. 5 of the Table annexed to Notification No. 75/84, dated 1-3-1984, the officers seized one consignment of Benzene in-transit alongwith the truck and the assessee had admitted that they did not have any plant or machinery for the manufacture of solvents and that they did not use the inputs for their intended use. As the assessees were not found eligible for availment of the concessional rate of duty prescribed by Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilised thinners i.e. Benzene/Toluene for the intended use as specified in Col. 5 of the Table annexed to Notification 75/84, dated 1-3-1984. As per provisions of the notification, this should have been intended for use as thinners for manufacture of paints, varnishes lacquers etc. or as solvent for the extraction of alkaloids, and actually used as such. There is nothing on record to prove that the assessees had, in fact, utilised the inputs for such intended use . The assessees had themselves admitted in the proprietor s statement dated 8-1-1985 that they did not have any plant or machinery for the manufacture of solvents and that they did not actually use the chemicals for such use. Notification 75/84, dated 1-3-1984, clearly provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the written reply filed by them and stated that the Collector does not have any power to file an appeal before the Tribunal against his own order and the appeal could be filed only under the orders of the reviewing authority the C.B.E.C within a period of one year. 4. Insofar as merits are concerned the issue is fully covered by Tribunal s order in the case of Shalimar Chemical Industries, Bombay reported in 1991 (36) ECR 55 (CEGAT SB-C). This order of the Tribunal shows that end-use verification is not a requirement under Notification 75/84-C.E. The wordings of this Notification as well as the Notification 35/73 are materially the same. 5. Learned DR stated that the appeal has been filed in terms of the Board s Order 19-R, dated 25-2-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt of the fact that : It is not the department s case that the appellants did not manufacture solvents based on Benzene or Toluene or that they diverted the raw materials to other uses; Whereas in the case before us that department has specifically alleged that the quantity in question had not been put to intended use but had been clandestinely removed. The cited case was therefore distinguishable on facts. 10. In our opinion when notification gives an exemption based on intended use the claimant (beneficiary) was required to put it to the declared use and if he fails to do so the consequences would follow. As rightly pointed out by the Learned D.R, in the case of M/s. Siemon Ltd. reported in 1994 (70) E.L.T. 305 relating to exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce any document to show that these goods were actually used and, therefore, in terms of Rules 192 196 of Central Excise Rules, they are liable to pay duty on those goods which are not shown to have been used in the manufacture of further excisable goods . 13. Following the ratio of the orders cited by the Learned D.R. we hold that the Learned Collector had erred in omitting relevant aspects of the matter and in not determining the full duty liability on the basis of all the aspects of the case but was required to do so on merits. 14. The penalty aspect can be considered only after a determination of the full duty liability as one of the factors to be kept in view is the seriousness of the matter which ought to be adjudged inter alia w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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