9911796707
TMI Blog2011 (9) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... the poly packs, to verify stock record, and to examine notification prescribing the basis for determination of assessable value in respect of disputed goods. Thereby, the matter is remitted back to adjudicating authority for re-adjudication. - CE/2497/2009-SM - - - Dated:- 2-9-2011 - Shri D.N. Panda,J. Appearence:- Shri Rupesh Kumar Mishra, Advocate for Appellant Shri S.K. Panda, Jt.C.D.R. for Respondent Per D.N. Panda: 1.1 This case was heard on 25.8.2011, 30.8.11, 1.9.2011 and today. Grievance of the appellant is that clearance of Kisan Gutkha made in the month of October, 2007 and November, 2007 in poly bags contained Gutkha of appropriate value as stated in column NO. 7 of Annexure to ER-1 return of these two months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 dated 04.11.2007 19,040 poly packs 155 dated 07.11.2007 18,408 poly packs 156 dated 10.11.2007 2,380 poly packs 158 dated 11.11.2007 19,992 poly packs Total 59820 poly packs 1.4 Learned Counsel, on the basis of aforesaid invoices submited that quantity of poly packs appearing in invoices with the corresponding aggregate assessable value of the respective brand of the goods were disclosed in Annexure to ER-1 return. He further drew attention to the show cause notice Para 5(a) to explain the nature of allegation made. According to him substance of the allegation was that quantity of clearance of Kisan Gutkha (60 x 1.5 gsm.) for the month of October, 2007 alleged to be different from production quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper assessable value and duty was paid properly. This does not call for any adverse inference. 1.7 It is further contention of the learned Counsel that learned adjudicating authority appreciated that there is no prescription in law to debar sale of goods of different weight packs. Need of law is declaration of proper assessable value. Invoices were issued for properly value of packed goods. In absence of any material to suggest no disclosure of proper assessable value and weight, clerical error deserves consideration. 1.8 It was also submitted by learned Counsel that Authorities have never verified stock register of the company to allege discrepancy. Without looking to reason of clerical error in the Annexure to ER-1 return, to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no examination done at all about the requirement of Section 4A of Notification by Authority below as to weight of the goods if any prescribed. The contents in the container whether was of declared quantity and of prescribed weight or not failed to be verified at any time in absence of any report in record. Buyers whose name appeared in the respective invoices of October and November, 2007 were not examined to ascertain weight of goods contained in the poly packs. Further, when the factory was closed on 14.11.2007 show cause notice was issued after 7 months. 4.2 Adjudicating authority has failed to ascertain from the invoices of the past as to weight of goods declared in respect of each pouch of impugned goods and whether weight of conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged by the appellant to disclose weight of each poly pack that may be considered as a basis to arrive at the proper quantity of goods cleared in the poly pack of both the months. 3) Invoices are to be examined to ascertain whether those were issued in accordance with law and most particularly according to norms of section 4A of Central Excise Act, 1944 and also according to norms of the letter dated 25.9.2007 referred to above disclosing quantity and number of poly packs if any to be disclosed since presence of clerical mistake is quite probable in view of nature of mistake pointed out by learned Counsel for appellant. 4) Stock record, if any exists needs to be verified to arrive at the quantity aspect of the clearance of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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