9911796707
TMI Blog2017 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... s would not be classifiable under 3824.90. In view of the contentions of the appellants, the matter should be considered afresh and conclusions arrived at concerning classification merited would only after proper analysis and reasoning - matter on remand. Whether duty liability can be foisted in respect of 18 products manufactured and originally cleared from the factory on payment of Central Excise duty, which was subsequently returned as sales returns for various reasons at their depot and sold to other purchasers on commercial invoice? - Held that: - From the orders of the lower authorities, we find that there is insufficient discussion and analysis to arrive at the conclusions against which the appellant is in appeal. Ld. Advocate has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pee Chemicals, Siliguri. Pursuant to investigations, show cause notice dt. 05.07.2005 was issued to appellant inter alia demanding differential liability on CERA Mould Release Agent, CERA Polycure, CERA Screed EP, / EPLV, demand on free samples, demand of differential duty out of consignment sales with interest and imposition of penalties under various provisions of law. The notice also proposed to reclassify the products viz. CERA Fil, CERA Polycrack Filler etc. under CETH 3214 and denial of Notfn 9/2003-CE, besides appropriation of payments made. Another SCN dt. 30.09.2005 was also issued to appellant alleging that huge quantities of CERA Polycure was invoiced as trading invoices from 1.7.2004 to 31.3.2005 and no central excise duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be less than ₹ 3 crores for the year 2003-04 and they would be eligible for SSI exemption Notification No.9/2003. (iv) Impugned order seeks to cover the period from 1.7.2004 to 31.03.2005. However for subsequent period 1.4.2006 to 3.03.2007 the very same dispute has been allowed in their favour by the Commissioner (Appeals) in an order OIA No.67/2008 dt. 02.06.2009. 3. Heard both sides and have gone through the facts. The core issues that come up for appellate decision is (i) Whether otherwise the impugned product CERA Polycure was manufactured by the appellants or whether the same has been only traded by them ? (ii) Whether the appellant's products would be classifiable under Chapter 3214 as held by the low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment has not produced sufficient evidence that the appellants had necessary machinery and that they had utilized raw materials produced; that there is no corroborative evidence to show the use of other raw material etc. and that there was neither cogent nor credible evidence on record to prove any clandestine manufacture or removal. Ld. Advocate has averred during the hearing that the subsequent order dt. 2.6.2009 has not been appealed against by the department. In any case, we find that the very same lacunae exist for the earlier period also. In the absence of any clear cut evidence to incorporate the allegations of manufacture of Cera Polycure W, the demand of duty demanded in respect of that item will not sustain and will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the factory on payment of duty. It appears that department has taken note of the fact that goods have been clandestinely removed without accounting. Appellant has contended that the impugned goods have only been returned as sales returns for various reasons at the depot or office and subsequently sold to other purchasers, however removed on commercial invoices only. They averred that duty liability has been discharged on the impugned goods. From the orders of the lower authorities, we find that there is insufficient discussion and analysis to arrive at the conclusions against which the appellant is in appeal. Ld. Advocate has stated that they are in a position to prove their bonafides in the matter. Accordingly, in the interest of just ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
