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TMI Blog2017 (12) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... working out the price variation will consist of basic price of bitumen only, prevailing on the rate 15 days prior to the date on which the said lot was offered for inspection, as indicated in the Inspection Note. The basic rates quoted in the quotation list are subject to the price variation clause. The appellant was removing Bitumen emulsion and not bitumen as such - appeal allowed - decided in favor of appellant. - Excise Appeal No.E/2577/2012 [SM] - FINAL ORDER NO. 58189/2017 - Dated:- 30-11-2017 - Mr. Anil Choudhary, Member (Judicial) Present for the Appellant : Mr.Deepak Kumar Bajpai, C.A. Present for the Respondent: Mr.G.R. Singh, D.R. ORDER The issue in this appeal is whether the appellant has removed inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prima facie time barred as it has been raised beyond the period of one year as prescribed. It was further urged that the adjudicating authority has made baseless findings about the removal of the Bitumen as such. In fact the appellant have not cleared Bitumen‟ as such, but cleared Bitumen emulsion‟ falling under different Chapter. The Bitumen purchased by them was classifiable under CTH 2713.20 and the Bitumen emulsion‟ cleared was classifiable under 2714.90. It was further stated that they have already paid the duty on the differential sale value before issuance of show cause notice. As such, the demand of ₹ 8,817/- is not sustainable and therefore, does not attract penal provisions. The ld. Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be accepted as it is not possible to reverse the reaction of any compound and change the property from synthetic to natural. 7. Further, the contention of the appellant on reply to the show cause notice that due to oversight they have mentioned Bitumen in their invoice for removal in place of Bitumen emulsion. This plea was rejected by the adjudicating authority. In the first appeal, the ld. Commissioner (Appeal) has observed that appellant put up a new contention to establish activity of manufacture and to avoid equal reversal in case of removal as such. Thus, it was concluded that appellant had removed petroleum Bitumen by classifying the same as natural Bitumen. Accordingly, he decided to dismiss the appeal. 8. Being aggrieved, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts on record. Only for the clerical mistake of mentioning Bitumen in the invoice instead of Bitumen emulsion, although right classifications have been mentioned, the whole proceedings have been initiated which are prima facie frivolous. 10. The ld. A.R. relied on the impugned order. 11. Having considered the submissions, I find that the contentions of the ld. Counsel are correct. If the allegation in the show cause notice are taken on their face value, the appellant will never incur a profit, rather always put to loss on selling their inputs. Further, I take notice that Bitumen emulsion is a diluted form of Bitumen and the sale of the same is always having a lower price than the input. Further, the ld. Counsel have also demonst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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