9911796707
TMI Blog2017 (10) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... lack of material to support the allegations in the show cause notice - ALSO, DMO was found inside the factory premises and there was no action and/or attempt on the part of the appellant to remove the same clandestinely. Demand set aside - appeal allowed - decided in favor of appellant. - E/1777/2009-EX[SM] - A/71147/2017-SM[BR] - Dated:- 24-3-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Ashish Vaish, C.A. for the Appellant Shri Sandeep Kumar Singh, Deputy. Commr, (A.R.) for the Department ORDER Per Mr. Anil Choudhary The issue in this appeal by the appellant-assessee a manufacturer of Menthol/DMO etc, is whether duty have been rightly demanded on the 71 drums of DMO lying in the factory premises on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said DMO was a marketable stage and were kept unrecorded with intention to remove clandestinely at an opportune time without payment of duty. The subject goods being 71 drums of DMO were seized under a panchnama. Thereafter, show cause notice dated 24 th January, 2007 was issued proposing to confiscate the 71 drums of DMO under Rule 25 of CER, 2002 and further proposal to impose penalty was made. Further, facts on record also show there after the inspection/seizure on 27/07/2006, the appellant by their letter dated 31/07/2006 addressed to the Assistant Commissioner stated that DMO had arisen in their factory in the process of manufacture of menthol crystals. Though it is in the nature of by product, it cannot be sold as such. It need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - final packing and dispatch of material. He further stated that by way of trade practice both raw oil and the treated oil are termed as de-mentholized oil. The oil in order to be sold has to undergo further manufacturing process as detailed here in above. It was further asserted that this fact can be confirmed by comparing analysis of a sample of the goods seized from the appellant with a sample of DMO being sold in the market. It was also stated that the appellant had got an export order in hand which is required to be executed urgently and accordingly he had prayed for release of the seized materials. The SCN was adjudicated on contest, vide OIO dated 28/03/2008 by the Joint Commissioner ordering confiscation under Rule 25, further o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to be untrue. Further, explanation given by the appellants that DMO of only particular grade and/or composition is marketable and/or salable and it is not that any and every kind of DMO is sellable which contention has also not been rebutted and/or found to be wrong by the Revenue. Further, the request made by the appellant to test the seized DMO and compare the such test report DMO as available in the market was not adhered to and as such the allegations in the show cause notice are vague and not tenable. It is also urged that the DMO for the purpose of sale and marketing is further processed by way of job work, whenever the appellant has order in hand, otherwise they do not resort to manufacture of DMO for marketing purpose and keep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticed. 6. Having considered the rival contentions, I find that there is lack of sufficient material on record to support the contention of the Revenue that the DMO so found and seized was in marketable stage. Further, I find that Revenue have failed to investigate further on the assertions and explanations given by the appellant that the DMO was not marketable but requires further stages of processing to make it marketable and also insisted on test report, which was not done and as such, I find that there is lack of material to support the allegations in the show cause notice. It is further a fact on record that the DMO was found inside the factory premises and there was no action and/or attempt on the part of the appellant to remove the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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