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TMI Blog2018 (12) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... wa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Mohd Altaf (Assistant Commissioner) AR for Appellant Absent for Respondent ORDER Per: Archana Wadhwa Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. We have heard Shri Mohd Altaf, Assistant Commissioner appearing for the Revenue. Nobody appeared for the respondent. 2. As per facts on record the respondents were engaged in the manufacture of various kinds of Railway and Auto Parts, viz.- Brake Shoes, etc. for two wheelers falling under Chapters 84 and 87 of the first Schedule to the Central Excise Tariff Act, 1985. 3. Respondents filed declaration for availing exemption under Exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No.50/2003-CE dated 10.06.2003 as amended w.e.f. 05.05.2009. 5. Subsequently, a team of Central Excise Officers visited factory of the assessee on 19.07.2011 during which, the appellant claimed to have started process of grinding of outer diameter of Brake Shoes which amounts to manufacture (hence they are claiming exemption under Notification No.50/2003-CE dated 10.06.2003 as amended vide Notification No.01/2008-CE dated 18.01.2008) has been verified. The officers found that two grinding machines were installed but no operation was going on such machines. Further, no records of dust/scrap generated during the process of grinding of the Brake shoes was found. Officers claimed that since grinding fixture was purchased only on 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008-CE dated 18.01.2008 by virtue of which the appellant started paying duty on the brake shoes and batteries cleared by him after packing with effect from 18.01.2008. Appellant further informed the Department on 05.05.2009 that he would stop paying duty on brake shoes and batteries with effect from 05.05.2009 as he had started undertaking activities other than those hit by Para 4 of the Notification No.01/2008-CE dated 18.01.2008. It cannot be presumed that the facility of grinding of the brake shoe did not exist in the appellant s unit merely on the basis of non operation of the unit on the particular day or non availability of burnt dust/scrap. It is an accepted fact that the officers of the Department visited the unit of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority has based his findings in this regard on fact that no clearance of unfinished brake shoe was shown in the ER-1 returns of M/s Magnum and unfinished brake shoes‟ was not included in the Central Excise Registration Certificate of M/s Magnum. I find that these omissions by M/s Magnum could not lead to the fact that the ungrounded brake shoes were not supplied to the appellant by M/s Magnum. Further M/s Magnum had also not disowned the invoice said to be issued by them instead Sh. Rajat Agarwal, partner of M/s Magnum, in his statement dated 29.08.2011, has confirmed the supply of ungrounded brake shoes from November 2008. I also agree with the contention of the appellant that the department was at liberty to take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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