9911796707
TMI Blog2019 (11) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the Appellant of having maintained separate records, which is not well founded. Payment of excise duty on the finished goods under S. No. 2 of Notification No. 23 as opposed to S.No. 3, which would have otherwise conferred greater benefit to the Appellant, is a prerogative of the Appellant and cannot be faulted with as it is a conditional exemption. The ratio of the decision of the Hon ble High Court in the COMMR. OF C. EX., LUDHIANA VERSUS MALWA COTTON SPINNING MILLS LTD. [ 2010 (2) TMI 260 - PUNJAB HARYANA HIGH COURT] extracted is rendered specifically in the context of an EOU only, covers the case at hand for want of any appreciable proof or evidence to support the levy of ADD as the entire demand is based on assumptions and presumptions. Appeal allowed - decided in favor of appellant. - Customs Appeal No.75581 of 2015 - Final Order No. 76458/2019 - Dated:- 25-10-2019 - HON BLE SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND HON BLE SHRI BIJAY KUMAR, TECHNICAL MEMBER Shri Arvind Baheti, C.A. for the Appellant Shri S. Guha, Authorized Representative for the Respondent ORDER PER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the contentions of the Appellant regarding maintenance of separate records, on the following grounds : (i) Had the Appellant maintained separate record of inputs procured from ADD jurisdictions vis- -vis procurements from Non ADD jurisdiction as claimed, the Appellant should have discharged excise duty on DTA clearance of its finished goods under Sl. No. 3 of Notification No. 23/2009 as opposed to Sl. No. 2 of the said Notification. (ii) The register maintained by the Appellant was not in agreement with the table submitted by the Appellant in its reply as there were differences in the issued to production and stock figures between the register and the table (iii) Procurement of inputs from the Non ADD jurisdiction were less than the DTA clearance of finished goods made by the Appellant during the period 2009-10 2010-11. 3. The learned A/R appearing for the Appellant has assailed the Order-in-Original on the following grounds: (i) By virtue of Section 9A(2A) of the Customs Tariff Act, ADD is not ordinarily leviable in case of an EOU and the same cannot be equated with an exemption. This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority in comparison **Wrongly taken as 1956 in the SCN for the entire year, when ADD itself introduced from 30 July 2009 (iii) The Appellant had discharged higher excise duty on the DTA clearance of its finished goods under Sl. No. 2 of Notification No. 23 as opposed to S. No. 3 thereof, which is available only if the finished goods are produced wholly from the raw materials produced in India. The said condition is extremely onerous as even one raw material if imported or sourced domestically but not manufactured in India will vitiate the condition. The Appellant had predominantly used PP imported from non-ADD jurisdictions and therefore consciously, not availed Sl. No. 3. (iv) No difference in the table submitted by the Appellant in its reply to the Notice vis- -vis the register. Stock of Polypropylene in process/WIP as at the end of each year included in the Closing Stock of Polypropylene in the Table whereas only closing stock of Polypropylene as such reflected in the Stock register. The breakup of the stock of input as such and the in-process stock was duly brought to the notice of the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that Section 9A(2A) is a special provision, which regulates the imposition of ADD in so far as an EOU is concerned. In the instant case, the ADD notifications does not specifically provide for imposition of ADD on Polypropylene imported by an EOU and which also explains as to why the issue before us is about the recovery of ADD originally foregone at the time of import. In so far as clause (ii) above is concerned, the onus is entirely upon the revenue to establish chargeability of ADD as these are post import conditions built in the section itself. Therefore, the crux of the issue before us is whether revenue could establish with sufficient or appreciable evidence that the Polypropylene imported from ADD jurisdictions were used by the Appellant in the manufacture of finished goods cleared in the domestic market. 7. On perusal of the Annexure to the Notice, we find that the entire demand is based on the laws of averages/proportionate consumption basis and no other tangible or appreciable evidence has been adduced in support of the charge/levy. The adjudicating authority records that an issue register for Polypropylene procured from ADD jurisdictions was maint ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
