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TMI Blog2018 (2) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... ent demand of duty is untenable under the above Notification - appeal allowed - decided in favor of appellant. - C/444/2006 - Final Order No. 40363/2018 - Dated:- 8-2-2018 - Ms. Sulekha Beevi, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri J. Shankarraman, Advocate for the Appellant Shri R. Subramaniyam, AC (AR) for the Respondent ORDER Per Bench The above appeal is filed by the appellant being aggrieved by the confirmation of demand, interest and penalties imposed under Order-in-Appeal No. 7/2006-Cus. 2. On behalf of the appellant, Ld. Counsel, J. Shankarraman submitted that another appellant M/s. Premier Cotton Textiles had filed appeal C/585/2006 arising out of the same Order-in-Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, are allowed to be sold in India, in accordance with the Export and Import Policy, on payment of duty of excise leviable thereon under section 3 of the Central Excise Act, 1944 (1 of 1944) or where such articles (including rejects, waste and scrap material) are not excisable, on payment of customs duty on imported goods used for the purpose of manufacture of such articles in an amount equal to the customs duty leviable on such articles, as if imported as such. 3.2 From the above it could be seen that once the manufactured goods which are excisable are allowed to be sold in accordance with Exim Policy no demand of customs duty can be raised. In the present case cotton waste which is cleared to DTA is an excisable goods falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty thereon when cleared. Department has not made any case to show that there was deliberate pilferage of the raw material by the appellant or diverted the same. In absence of any malafide being brought on to record, appellant cannot be suspected to have made any undue gain at the cost of the State. Therefore, arbitrary adjudication is not permissible. Accordingly, appeal is allowed. Taking note of the fact that the very same issue arising out of the very same impugned order was analysed and held in favour of the assessee therein, we are of the considered opinion following the said decision the demand cannot sustain. The impugned order is set aside. Appeal is allowed with consequential reliefs, if any, as per law. ( Order dictated an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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