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TMI Blog2008 (8) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Kolkata. Subsequently, Shri C. M. Ghorawat, ld. Advocate for the respondents has filed a letter dated 14-6-08 enclosing a certified true copy of the judgment dated 16-1-07 of the Hon ble High Court of Kolkata. Accordingly, a direction was issued on 17-6-08 fixing hearing of the stay petition on 3-7-08. 2. Both sides have been heard at length. 3. It has been argued by Shri S.K. Bagaria, ld. Sr. Advocate appearing for the appellants that the short question involved in the present case is whether the appellants are entitled to exemption under Notifications issued from time to time in respect of asbestos cement sheets manufactured by them. The Notifications in force upto 27-2-93 required use of more than 25% by weight of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the appellants has not been questioned or held to be wrong or incorrect. He states that it is not even the department s case that the difference between the standard weight and the actual weight is more than 10%. The solitary weighment chart relied upon by the Department pertains to sample weighment in respect of fully drenched sheets lying in the maturing area where the sheets are kept for 28 days to facilitate complete maturing. Only after the said period of 28 days in the maturing bay, that sheets are taken for drying and only after drying, sheets become ready for dispatch. He states that weighment of the sheets undergoing the maturing process in fully drenched condition in the maturing area cannot be said to be the weight of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been decided in favour of those assessees. Shri Bagaria submits that in respect of the appellants own units in other jurisdictions in Hyderabad, Faridabad, Vijayawada, the system of maintaining standard weight has been approved by the jurisdictional authorities and no proceedings have been initiated against any of those units as has been done in this case. 8. Shri Bagaria also states that some of the statements of the Executives working in the appellants factory have been misconstrued by the Department to confirm the impugned demand but careful consideration of the statements would show that the same do not support the Department s case. He states that all the statements given by the Executives make it very clear that they all ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1151 (Tri.-Del.). Shri Mukherjee also states that the appellants have not computed the percentage of fly ash as they were cleared from the factory, but have computed the same with reference to the standard weight which is some imaginary theoretical weight. He refers to the statements of the appellants Executives in this regard. 10. Shri Mukherjee also states that the appellants are claiming the conditional exemption from Excise duty. Hence, burden is on them to prove that the condition is fulfilled in their case. Moreover, since the appellants have not, prima facie, made out a case, nor have shown proof of any financial hardship, or any other hardship, the predeposit should not be waived in their case. 11. We have considered the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. Moreover, the contentions of the appellants that the Commissioner has not prescribed any specific account and record to be maintained and that they are maintaining the accounts prescribed under Board s letter and the fact that such record has never been questioned all these years, are in favour of the appellants. We find that in the case of M/s A. Infrastructure Ltd. v. Commissioner of Central Excise, Jaipur - 2001 (131) E.L.T. 389 (Tri.-Del.), the Tribunal has held that the stand taken in the show-cause notice that water content was to be taken into consideration for arriving at 25% of fly ash content cannot be sustained. 13. Since the Department has not questioned the production figure recorded in the statutory records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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