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TMI Blog2018 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... gregation of the scraps retrieves copper from the same and the copper scrap so obtained is melted and from it copper ingots are manufactured. The department has entertained a doubt that appellants are under-reporting the recovery of copper from copper scrap procured by them and by indulging into lower recovery, they are suppressing the manufacturing and clearance of copper ingots and thereby evading central excise duty. The Central Excise officer have supervised six consignments totally weighing 300.825 MT of copper scrap imported under 5 Bills of Entry. It revealed in the supervision of recovery that the average recovery of copper from mixed copper cable scrap imported under 5 Bill of Entry was 31.8 % of total weight. 2. The investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order and remand the matter back to the adjudicating authority to have a comparative study from like factories and make estimation accordingly, but by providing a reasonable opportunity of personal hearing to the appellant. Additional evidence may be admitted, if need be during the course of hearing. Learned Counsel for the appellant assured full support to the lower authority. With the aforesaid direction, the appeal is allowed by way of remand." 4. In pursuance to the above order of this Tribunal, the matter has been re-adjudicated vide order-in-original dated 31.5.2017 wherein the duty and other penalties have been confirmed in toto. 5. It can be seen that this Tribunal in its order dated 16.11.2016 has specifically asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring on behalf of the appellant has stated that the adjudicating authority has failed to implement the instructions issued by this Tribunal in their order dated 16.11.2016 stating that the department has not undertaken any comparative study of like industries for ascertaining the standard percentage of copper metal recovered from various kinds of copper scraps. It has also been argued that principles of natural justice has not been followed by the adjudicating authority as no copy of any such study was provided to them before undertaking the adjuration in this matter. The learned Advocate has assailed the order-in-original saying that it is based on mere surmises and conjectures without any substantial evidence indicating excess manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservation of the Commissioner basically indicates that he has not put any serious efforts in making judicious decision into the allegations made under the impugned show cause notice. He has rather adopted a comfortable posture by simply confirming the duty demanded under the impugned show cause notice. 9. For establishing the clandestine manufacture and clearance, the department has not made any sincere efforts to establish that appellant-assessee have manufactured and clandestinely cleared the copper ingots over and above what was declared by them in their statutory records. The law is fully settled that in every case of alleged clandestine manufacture and clearance, the onus is on the revenue to prove what it alleges with positive and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like zinc dross, zinc ingots, etc. and which are of different purities. During the hearing, Ld. Advocate for the appellants further referred to literature - "Zinc - The Science and Technology of the Metal, Its Alloys and Compounds authored by CH Methewson, Professor, Yale University, prepared with cooperation of the American Zinc Institute; and the Scrap Specifications Circular issued by Institute of Scrap Recycling Industries, Inc. saying that the conclusions mentioned in the show cause notice and in the order-in-original confirming the suppressed production and duty is not correct, considering the varieties of zinc scrap like "Saves, Scabs, Scribe" and so on used by the appellant. 6.1 Further the department has not gone beyond the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in the form of approximation and averaging production as 77.6% and one statement of Shri Agarwal, Director of the appellant company cannot be called a prudent conclusion of the production estimate. 6.3 Consequently, we are of the considered view that the department has not discharged its burden of conclusively proving the case of suppressed production and clandestine clearance by the appellants. In this regard we seek support from Hon'ble Allahabad High Court's decision in the case of Continental Cement Company v. Union of India - 2014 (309) E.L.T. 411 (All.) and Supreme Court's decision in the case of Oudh Sugar Mills Ltd. v. Union of India - 1978 (2) E.L.T. (J172) (S.C.) and CESTAT's in the case of Punalur Paper Mills Ltd. v. CCE - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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