9911796707
TMI Blog1996 (10) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondents have sought for adjournment. Since, it is a covered matter, we decline the request for adjournment and proceed to decide the appeal itself. The ld. JDR for the department has stated that the ld. lower authority has not appreciated the scope of the notification. The use of the kiln for the manufacture of the cement for the purpose of the notification is a condition precedent. In the present case admittedly the clinker was purchased from outside and the cement manufactured. A reading of notification does not lend itself to the interpretation as sought to be placed by the respondents that once they have the vertical shaft kiln, they need use it for the manufacture of cement and cement manufactured even without the use of the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/91-C.E. in the case of Cement manufactured out of clinker brought from outside so long as the Cement plant is complete with KILN AS ENVISAGED in the Notification. Hence the respondents pray that the order-in-appeal passed by the commissioner (APPEALS) may please be upheld and the appeal disallowed. It may please be noted that in the earlier Notification No. 36/87-C.E. and also in the later Notification No. 5/94-C.E., dated 1-3-1994 as amended by Notification No. 82/94-C.E., dated 7-4-1994, a condition was laid in both the above Notifications that the concessional rate of duty is eligible only if the Cement manufactured out of clinker produced in the same factory. But in Notification No. 24/91-C.E., there was no such condition that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Collector reported in 1988 (25) E.L.T. 318 (Tribunal). In the light of the above decisions, it is submitted that the observation of the original authority to say the concession will not be available to the cement produced in the factory, when the clinker is brought from outside factory, is untenable and the denial of the concession eligible to the factory under Notification No. 24/91-C.E. as amended is not justified. Hence the respondents pay that the order-in-appeal may please be upheld and the appeal disallowed. 3. We have considered the pleas made by both the sides. We observe that the concession is available in terms of the notification in respect of cement manufactured using verticle shaft kiln. The use of verticle shaft kiln has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications. In this connection we have held in our order No. 832/82, dated 16-5-1996 as under in para 4 : 4. We have considered the submissions. The learned lower authority has stated that the appellant had manipulated the raw material register in Form-IV to show receipt of grey cotton fabrics although man made fabrics were actually received by them based only on vague allegation made in the impugned order without any evidence in this regard. Further, the impugned order itself has not narrated the facts very clearly. In para 20 of the order, it is stated by the adjudicating authority that from the delivery challans attached to the lorry receipts seized from Bombay Andhra Transport it was clear that the fabrics covered were nothing but man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regard is not sufficient to fasten the duty liability on the appellants. No other evidence was relied in the impugned order to show that the appellants are liable to pay duty. The learned DR also could not point out any satisfactory evidence in this regard which were discussed by the adjudicating authority in the impugned order. In this view of the matter, we find that there is no reliable evidence in this case to show that the appellant is liable to pay duty in this regard. In the facts and circumstances, therefore, the appellant is entitled for the benefit of doubt. The demand of duty in terms of the impugned order is not sustainable. The appeal is thus allowed and the demand of duty in terms of the impugned orders are hereby set used. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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