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TMI Blog2016 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... venue held that the appellant cleared cement with specific surface of not less than 3500 CM2/g chargeable to Rs. 91 per MT instead they paid duty of Rs. 82 per MT in terms of notification no.89/1976 dated 16.03.1976. This allegation was made based on 14 test reports of National Test House, Alipur , out of 70 samples sent periodically for testing. These 14 samples indicated a cement quality of not less than 3500 CM2/g, whereas the appellant paid duty applicable to ordinary Portland cement with minimum fineness of 2250 CM2/g. A show cause notice dated 3.8.78 was issued to the appellant demanding differential duty. After due process, the Asstt. Commissioner vide his order dated 5.8.1980 confirmed the demand. The appellant approached the Honbl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty at the rate of Rs. 82 pmt. Now, on ascertaining certain details from the test reports, the Department alleged that 14 out of 17 test reports, indicate that the clearances are of finer quality cement of not less than 3500 CM2/g. Accordingly, the demand was raised for differential duty. Ld. Counsel submitted that till they received the show cause notice, they were not even aware that some of their clearances were of different quality as they have never received any intimation either from DGS& D or from National Test House. In these circumstances, there is no basis to demand duty from them. They have been all along clearing only ordinary Portland cement, which is confirmed regularly by their internal testing. Certain reports by NTH i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of higher amount. Regarding their lack of knowledge about the outcome of test conducted on samples, the ld. Commissioner (Appeals) rejected the appellants claim without any explanation. He further observed that in the classification list under Rule 173B, the appellant did not declare the correct specific surface in respect of 14 samples in order to avoid paying higher rate of duty. This observation of the ld. Commissioner (Appeals) is not sustainable as the appellant themselves were in dark about certain samples having specific surface higher than what is contracted for supply. This is evident from the fact that they have not received any extra consideration for this higher quality. Since the test reports were obtained by the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ascertained with periodical testing of samples. If a manufacturer sells the commodity at a price higher than the maximum price fixed, he will suffer the penal consequences. However, he may be free to sell at a price lower than the maximum price fixed. So also the manufacturer has to maintain the minimum quality as stipulated in the contract. If the quality of cement goes below, as per the samples testing, then he will have to incur consequences as stated in the contract. So the maximum price and the minimum quality of the commodity having been fixed in pursuance of the Cement Control Order notified by the Government; and when there is no evidence to show that appellant sold the cement of higher quality at a higher price, merely on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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