9911796707
TMI Blog2006 (7) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the same order-in-original, they are being disposed off by a common order. 2. The relevant fact that arise for consideration are the officers of anti-evasion, Jaipur on a surprise visit to the factory and godown of the appellant found that the appellant was consuming High Speed Diesel (HSD) in the dryer machine and this diesel was being supplied to the appellant from Unit No. 2 which was procuring duty free High Speed Diesel against CT-3 form in terms of Notification 1/95-C.E., dated 4-1-1995 applicable to EOU s. The appellant accepted the mistake and reversed the entire amount of the duty on 6-2-2002. The officers subsequently visited the godown of one of the group companies i.e Vikas Chemi Gums India Private Ltd. (VCGIPL) and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate appearing for the appellants submits that the appellant is indeed in the manufacture of Guar Gum Powder and the unit is EOU and has four units located in the same district and all the units are registered with the Excise Department separately. It is his contention that they are not contesting the amount of excise duty confirmed against the receipt and consumption of the HSD from another EOU and contesting only the penalty imposes in respect of the violation of the law in consuming USD received from another EOU. He further submitted that as regards the demand of duty on the Guar Gum Powder seized from godown of VCGIPL, the said bags did not contain Guar Gum Powder as it is very evident from the analysis report given by the CRCL. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss. Remnant may be collected with in 30 days. 7. The appellant contested the said analytical report and asked for re-test of the sample vide their letter dated 31st December, 2002. The authorities got the samples re-tested by the CRCL and the said report reads as under :- No. 75 - Exo/2003 Date : 27-8-2003 From : The Director I/C (Revenue Laboratories) To, The Deputy Commissioner (AE) O/o the Commissioner of Central Excise N.C.R. Building, C-Scheme, Statue Circle Jaipur - I Commissionerate, Jaipur. Sir, Subject : Sample of Guar Gum Churi Powder -request for retesting - Reg. Please refer to your letter C.No. IV (6)7/AH/JPR-I./2002-537 dated 7-3-2003 forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Powder. On specific direction from the Bench to produce the detailed analytical report of the CRCL, the revenue produced the same which reads as under :- VALUES OF CHARACTERISTICS WHICH HAD FORMED THE BASIS FOR TEST REPORTS ISSUED FROM CRCL, NEW DELHI Characteristics of Analysis Results on the basis of which Test Report C.No. 136/Chem/Misc/J/2002/CLJ/AF/252 dated 6-5-2002 was issued Results on the basis of which Test Report C.No. 73/EXO/2003 dated 27-8-2003 was issued 1. Moisture, % by mass 7.00% 7.03% 2. Ash, % by mass 1.4% 1.4% 3. Protein, % by mass 8.75% 15.6% 4. Gum, % by mass 82.6% 75.7% 5. Viscosity Not deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e galactomanan contents when they analyzed the sample for the first time on 6-5-2002. Subsequently, on the request of the appellant, retested the same sample and made observation regarding, viscosity and galaetomanan contents. It is surprising to know that in spite of the viscosity and galactomanan being the most important test for ascertaining whether the sample is of Guar Gum powder, the CRCL did not conduct these tests on 6-5-2002. We also find that the analytical report of the CRCL dated 27-8-2003 shows variation from the analytical report of 6-5-2002, as regards Moisture, Protein and Gum percentage. It is understandable, that the moisture contents may increase/decrease when the sample is stored, but the same sample cannot show a variat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice, penalty under Section 11AC is not imposable on the appellant as has been held by the Hon ble High Court of judicature at Bombay in the case of Commissioner of Central Excise-I v. Gaurav Mercantiles Ltd. as reported at 2005 (190) E.L.T. 11 (Bom.). Respectfully, following the said judgement and the order of the Larger Bench of Tribunal in the case of Commissioner of Central Excise, Delhi-III v. Machino Montell (I) Ltd. as reported at 2004 (168) E.L.T. 466 (Tri.-LB) = 2004 (62) RLT 709 (CESTAT-LB), we set aside the penalties imposed on the appellant on this count. 13. In the result, appeal succeeds and is allowed with consequential relief, if any, to the appellant. (Operative part of the order was pronounced in the open ..... X X X X Extracts X X X X X X X X Extracts X X X X
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