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TMI Blog2002 (8) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... 34/2001-Cus. Adjn., dated 9-8-2001. The allegations against NG, an 100% EOU, are that they removed 12500 sq. mts. of polished granite slabs and 1500 sq. mts. of sawn marble slabs to various customers, through M/s. Manjunatha Tempo Service, without payment of duty and without permission for sales in Domestic Tariff Area, in total violation of the procedures set out under Rules 100A to 100E of the erstwhile Central Excise Rules, 1944 (CER for short). The SCN alleges that the buyers of the clandestinely removed goods have admitted receipt of multiple consignments against one invoice on different occasions, the details of which have been given in the SCN. The cash bills of the transporter and the statement of Shri Hema Reddy also are relied upon in the SCN in support of the allegations. It is further alleged that as per the statements of the buyers, the goods received by them were not rejects/wastes and hence the price approved for DTA sales in respect of the rejects cannot be applied to the goods in question. It is also alleged in the SCN that marble slabs were cleared to persons whose addresses are not available. Ruling out the possibility of fixing the assessable value under Rules 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bs, which are considered as rejects in the export market. As explained above, even a small crack makes a fully polished slab into a reject material. The defects/damages/cracks in these slabs are very negligible and in some cases even not visible to the naked eye. Since these goods cannot be exported, the same are termed as export rejects and cleared into DTA, at a lesser price. 6. The Bench has considered the pleas and perused the relevant records. As regards the reduction sought in the quantity of granite slabs clandestinely removed, the Respondent Commissioner has forwarded copy of the letter C. No.VIII/48/54/2002-Cus-Prev., dated 28-1-2002 from the DC (Prev.), HQ, Bangalore who have investigated the case. In the said letter, it is, inter alia, stated: In this respect it is felt without filing any objection on this account, the Department may ask the Settlement Commission to consider the request for reduction in the quantity after verifying the RC books of the concerned vehicles . During the hearing held on 7-3-2002, the authorized Representative of the Respondent, raised no objection to the question of granting reduction in the quantity sought by the applicant on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rai Gold 20 mm thickness, Pallava Yellow 2 cms, Raw Silk 2 cms., Madurai Pink 2 cms., Kashmiri Gold 30 mm, Kashmir White 30 mm, Colonial Dream 30 mm. With so many varieties being available, establishment of the identity is relevant for determination of value in terms of CVR, 88. These valuation is possible, only if there is some indication/idea of the description of the goods removed without payment of duty. As the identity has not been established, it would be difficult to fix the value even in terms of Board s Circular 23/84-CX 6 issued from file F. No. 202/12/84-CX. 6, dated 29-5-84, or even to adopt the export price without establishing that the export goods, whose price is sought to be adopted, are similar or identical to the impugned goods. It appears that even the SCN has ruled out determination of value in terms of Rules 5, 6, 7 and 7A of CVR, 1988 mainly in view of the fact that the identity of the goods removed clandestinely could not be established. The narrations in Paragraphs 19, 20 and 21 of the SCN makes this aspect even more explicit. Even the cash bills of the transport company do not throw any light on the description of the good as they contain only the details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for the goods removed clandestinely, the benefit of Notification Nos. 2/95-C.EX., dt. 4-1-95 and 8/97-C.EX., dated 1-3-97 as amended will not be available as they applied only to goods allowed to be sold in India. According to him, without availing the benefit of the above said notifications, the additional duty payable on the clandestinely cleared marble slabs would work out to Rs. 1,81,108/- and he has agreed to pay the same. 12. The Bench finds that, being goods admittedly cleared clandestinely, levy of duty under proviso to Sec. 3(1) of the Central Excise Act, 1944 is not attracted in this case. Levy of duty under the said proviso will arise only if the goods are allowed to be sold in India. For the same reasons, the Notifications 2/95-C.E., dt. 4-1-95 and 8/97-C.E., dt. 1-3-97 also cannot be applied. The duty is to be charged in terms of sub-sec. (1) of Sec. 3 of the Central Excise Act, 1944. Our view finds support from the Circular 618/9/2002-CX, dt. 13-2-2002 issued by CBEC, in pursuance to the judgment of the Hon ble Apex Court in M/s. SIV Industries v. CCE - 2000 (117) E.L.T. 281 (S.C.). Accordingly, in respect of both Granite slabs and marble slabs, only central e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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