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TMI Blog2021 (3) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order dated 04.11.2015 made in Final Order No.41495/2015 passed by the Customs, Excise & Service Tax Appellate Tribunal, Chennai ('the Tribunal' for brevity). 2. The appeal was admitted on 07.04.2016 on the following reframed substantial questions of law: "1. Whether in the facts and circumstances of the case, the failure of the Tribunal, to arrive at definitive findings of fact, despite being a final fact finding authority, vitiated its order? 2. Whether in the light of the finding that there was no diversion of imported material and that consequently, the levy of penalty was unjustified, the confirmation of the demand for duty alone could be upheld? and 3. Whether in the facts and circumstances of the case, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be treated as an indicator and that may not be a sole reason for initiation of proceedings. This aspect was considered by the High Court of Gujarat in the case of Goodluck Garments Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Surat-II reported in 2019 (365) E.L.T 893. The argument of the assessee therein was that the input-output norms were in the nature of guidelines and not a fixed formula. This aspect was considered and the Court held that the mere fact that the wastage was in excess of the input output norms, without anything more, would not be sufficient for the Assistant Collector to arrive at the satisfaction that the imported fabric had not been used for the manufacture of the articles for export. Further, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available cannot be a reason for issuance of the Show Cause Notice dated 16.09.2009. Consequently, the Order-in-Original No.23 of 2009 cannot be sustained. 11. In the result, the appeal filed by the assessee is allowed on a different ground than what was raised by the assessee, namely that standard input-input norms cannot be a sole basis for giving a cause of action for issuing the Show Cause Notice for determination of the wastage, when there is no allegation of diversion made against the appellant. Therefore, the reframed two substantial questions of law namely question Nos.1 and 3 are answered in favour of the appellant. The order passed by the Tribunal vacating the penalty is sustained. No costs. Consequently, connected miscellaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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