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TMI Blog2000 (11) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... at as such there could be different reduced price for contract sales to them. The Commissioner of Central Excise (Appeals) did not agree with the argument of the appellants and observed that M/s. Fairdeal were the stockists of M/s. TITAN; they were disposing of watches as per the instructions of M/s. TITAN. He observed that there was no commercial consideration for supplying the goods to their stockists at the reduced price and he confirmed the demand of Rs. 31,960.80. No penalty was imposed. 3. We have heard Shri R. Raghavan, learned Advocate for the appellants and Shri S. Kannan, ld. DR represented the Revenue. 4. The main arguments taken by ld. Advocate were than Aquara model watches had become obsolete; M/s. Fairdeal had taken these watches for distribution as gifts and that for the purposes of transaction in question, M/s. Fairdeal could be considered as a different class of buyer. 5. In reply, Shri S. Kannan submitted that M/s. Fairdeal were stockists of M/s. Titan and they could not be considered for the present transaction as a different class of buyer when Part I price for the same model supplied to M/s. Fairdeal themselves were considerably higher. He also rebutted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied at a considerable higher price. 10. In fact M/s. Fairdeal could also not be considered even as a favoured buyer. Admittedly, M/s. Fairdeal were also stockists to other manufacturers/traders. No different capacity could be ascribed to M/s. Fairdeal to make them a different class of buyer insofar as the appellants were concerned - one buyer for higher price and one buyer for lower price. Such an interpretation is not in consistent with the provisions of Section 4 of Central Excise Act, 1944 (herein after referred to as the Act) and is liable to be rejected. 11. There is nothing to establish that the goods were defective. It is also not correct that Aquara Model watches had become obsolete. As stated by the appellants the technology for manufacturing these watches was transferred to M/s. Timex Watches, Noida. Such a transfer of technology would not change the model of watches as obsolete. In their reply dated 20-4-1993 to the SCN dated 27-8-1993 they had this to say - In this connection we wish to submit that Aquara model watches are no longer produced at our factory. We have discontinued the production from August 92 and the technology for manufacturing these watches were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct evidence to link the results of the samples drawn from the stock with the removals made by invoices in question, except to rely on test results. The appellants have shown from the ISI specifications that eyebrow pencil is not breakable, while the test results showed that sample was breakable, therefore, the test results given by the Chemical Examiner is not definition of the type of goods in question. Be that as it may, the test result is not at all conclusive with the fact that the goods removed were eyebrow pencils, as the samples pertaining to test results were not from the goods which were removed by invoices. Therefore, the test results of the Chemical Examiner cannot be applied for different category of goods removed through invoice in question. There is no evidence to link that samples removed from the stock with the goods removed through invoices in question. Therefore it can be easily concluded that the Revenue has not discharged their burden in showing that there was misdeclaration and the appellants had removed eyebrow pencil in the garb of exempted pencils. [para 5] CASE CITED Pattani Chemicals v. Collector 1991 (56) E.L.T. 253 (Tribunal) Referred . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been removed under invoices in question and therefore, results of samples collected from the factory premises cannot be applied for those goods which had been cleared. It had been pointed out that the Chemical Examiner had also clearly indicated that the sample is capable of breaking. It was pointed out that in terms of ISI specification for eyebrow pencil, the same could not break. The results of cross-examination of Dr. Badri Prasad was also relied to show that the report did not pertain to eyebrow pencil. However, the Commissioner in the impugned order has relied on the Chemical Examiner s report to hold that what was cleared by the invoice was eyebrow pencil, which was required to have cleared on payment of duty. 3 . Arguing for the appellants, learned Consultant Shri C. Chidambaram pointed out that the test result was with regard to samples which were lying in the factory stock. The appellants were manufacturers of various types of pencils. Eyetex was a common brand name for all types of pencils. Each type of pencil and its name was added along with the trade name of Eyetex . It was pointed out that in the absence of samples or seizure of impugned goods, the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m any person admitting that the goods which were removed in question was eyebrow pencil. There is no direct evidence in the case to link the results of the samples drawn from the stock with the removals made by invoices in question, except to rely on the test results. The appellants are not denying that the stock in question was pertaining to different categories of pencils and for which they had maintained proper records and discharged duty. They have given various ingredients of eyebrow pencil, and black pencil Eyetex and they have shown that black pencil has a composition of Mutton Tillow, Wax etc. which are not used in Eyebrow pencil. They have also shown from the ISI specifications that eyebrow pencil is not breakable, while the test results shown that sample was breakable, therefore, the test results given by the Chemical Examiner is not definitive of the type of goods in question, as the test result is in definite norms but by using the words can be considered as eyebrow pencil . Be that as it may, the test result is not at all conclusive with the fact that the goods removed were eyebrow pencils, as the samples pertaining to test results were not from the goods which were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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