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TMI Blog2005 (1) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainers. Both types of clearance were declared accounts maintained. 1.4 The present impugned proceedings are, as regards declared inputs viz Stainless Steel Coils/Sheets received from dealers. They are using such steel products of various grades such as- (i) Salem AS(304) (containing 80% Nickel) from M/s. Sail through stock/registered dealers on invoices as prescribed as per rules. (ii) Salem AS-202 or SSLN-4 (both having 80% Nickel or SSLN-2 having 2% nickel, again from M/s. SAIL as above. (iii) They also procure 4% or 2% Nickel Steel from M/s. Jindal Strips Ltd. with codes J-4 or J-3 or J-l as also from other Manufacturers. This material was called Rolling Grade SS coil. AS 304 grade being better in quality than Rolling grade quality was used generally in products for export. Steel so procured was directly sent to job-workers or also after receipt from appellants factory, for conversion into lids containers for Tiffins/Casseroles. 1.5 A show cause notice was issued by the officers after completion of the enquiries alleging - (i) CTL used only rolling grade steel in manufacture of containers for cassettes lids thereof but availed credit on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the suppliers directly (para 4 of the order refers). (c) Modvat invoices in question are all on record and are not disputed. They show all the particulars as required in the proforma prescribed for such invoices. (d) Receipt and consumption of total quantity of S.S. Steel Coils/Sheets (both A.S. 304 and Rolling Grade) is not disputed. There is neither an allegation in Show Cause Notice nor finding in the impugned order to the contrary. (e) The appellants have been clearing their finished products i.e. Insulated Casseroles Insulated Tiffins, on payment of appropriate duty and scrap generated has been disposed off in accordance with provisions of Modvat rules. (f) The dealers have confirmed delivery of S.S. coils/sheets as per their invoices, which are not disputed. (g) Registered dealer s invoices show the particulars of parent invoices issued by S.A.I.L. showing the grade particulars of S.S. Steel in question. (h) None of the job workers have stated that they received S.S. Sheets/Coils contrary to or in variance with the particulars given in the dealer s or manufacturer s invoices. (i) Both A.S. 304 grade as also Rolling gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t receipt of rolling grade or illicit disposal of A.S. 304 grade received under Modvat invoices by the appellants. In fact it has been shown that the job workers have immediately after their statements were recorded, filed affidavits confirming having received S.S. Steel and Rolling grade materials to prepare bowls and they were made to state that only in export goods the aforesaid Salem Steel was used, while as a matter of fact the receipt of Salem as well as Rolling material as per availability cannot be denied. They have, also stated that they manufactured bowls from both Salem and Rolling grade and they did not know whether the company uses the same in exports or local market. This aspect, of the statements, has been over looked without arriving at any reasons as to why, that is not the state of affairs as indicated in the affidavits. The ld. Commissioner has also ignored the affidavits by observing that no evidence is produced in support of their contention that these affidavits were filed with the Department. Whereas it was shown that receipt of some of the affidavits has been acknowledged by the Department. (Exhibit E produced before us). This one sided approach reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are found to be relied interpreted is a biased manner, will not justify to arrive at conclusion of ineligibility to credit. (d) The registered dealers have confirmed supply of S.S. Steel as per the invoices issued by them, which give reference to the parent invoices of the manufacturers. The manufacturers invoices show the grade of S.S Steel supplied to the dealers. Moreover there is a difference in price of both the grades, from which the actual supplied grade can be ascertained. When the purchase orders quote the price and the dealers invoices give reference orders, quote the price and the dealers invoices give reference to the parent invoices of the manufacturers, no deliberate design can be attributed, or concluded, merely because the dealer s invoice or purchase orders do not show the grade, especially when there is no statutory requirement for showing the grade or quality in the format of invoice prescribed for issue by registered dealers. Even assuming that purchase orders should have shown grade, there is no compulsion under law shown, for the dealers to show the grade in their invoice. There is no averment from any of the registered dealers to the effect tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in case of Sunrise Structural Engineering Ltd. v. CCE, Nagpur vide Final Order No. A/711 to 722/WZB/04-CII, dated 27-8-2004 in case of appeal No. E/3182 to 3193/2002-Mum this part was however not pressed by ld. Advocate since on merits. No incorrect availment of Modvat credit was made out. 2.5 Regarding Issue B , i.e. on the following facts, undisputed, as seen from the Show Cause Notice and the impugned order. The appellants in their classification declarations and price declarations have indicated clearly two distinct clearance : (i) Insulated Thermoware without S.S. Tiffin container; and (ii) Insulated Thermoware without S.S. Tiffin container; and as seen from Exhibit C produced before us. (a) Wherever insulated Thermoware with S.S. tiffins are cleared, they were paying Central Excise duty on the value of such ware including the value of S.S. Steel containers. Further, where insulated Thermoware were removed without S.S tiffins containers they are cleared on payment of duty without reckoning the S.S Containers values. The excise invoices visualise the same as without steel containers as shown from invoices at Exhibit (C). This fact established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court - 2000 (121) E.L.T. A224 (S.C.). Savita Chemicals v. CCE - 2000 (119) E.L.T. 394 (Tri.) - Which has been upheld by Supreme Court at 2001 (130) E.L.T. A262 (S.C.) Goetze (India) Ltd. v. CCE - 2004 (169) E.L.T. 274 (Tri.) CCE v. A.Z. Electronic - 2001 (134) E.L.T. 689 (Tri.-Mum.) (d) In view of the above, demand of duty, on value of S.S. containers, bought out by the appellants and sold from the godown which are otherwise chargeable to Nil rate of duty, is not justifiable to be included on merits, as no material of them being specific integral parts produced/relied. 2.8 The reasons of the adjudicator for invoking the larger period under Section 11A by observing that S.S. Containers are specifically obliged to fit in the insulated Plastic tiffins/lunch carriers that no insulted tiffin could be sold without inclusion of value thereof that the declarations of trading in such goods was deliberate to evade duty on the value of containers basing his finding on the statements of Shri Ashok Modi the seller of such containers is overlooking the facts of removal of such Plasticware from the factory and the settled law on this asp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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