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TMI Blog2008 (5) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Appellant. Shri A.S. Sunder Rajan, Advocate, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - Revenue has filed an appeal and party has filed cross-objection against the Order-in-Appeal No. 155/2004-Cus (B), dated 28-12-2004 passed by the Commissioner of Customs (Appeals), Bangalore. 2. Mr. A.S. Sunder Rajan, learned Advocate appeared on behalf of the party and Mr. K. Sambi Reddy, learned Departmental Representative, for the Revenue. 3. The assessee or the party is a 100% EOU. They had permission and licence for manufacture and export of Granite slabs and tiles. They were also permitted for the manufacture and export of finished marble slabs and tiles. The Departmental Officers visited the unit and cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marble blocks. They had cut them, they had sawn them and they had undertaken quite a number of processes and what have been cleared are the goods which had certain defects and which could not have been exported in view of the certain defects noticed in them. Moreover, these products were cleared only on payment of appropriate Central Excise Duty. Taking such a view of the things he dropped the proceedings as regards the demand of duty and interest on the imported item. However, for certain irregularities in the maintenance of accounts, he imposed a penalty of Rs. 10,000/- only under Section 117 of the Customs Act. The party in their cross appeal they have appealed against the imposition of the penalty of Rs. 10,000/- on them. The Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d finished items are manufactured out of imported marble slabs/tiles/blocks. DTA clearance of rough stones shall not be permitted." Accordingly, the permission for DTA sale was only for finished items and was not for un-finished, semifinished items, which were yet to undergo various processes before attaining the stage of finished items. The Commissioner (A) has taken a narrow view of the issue by emphasizing only on that portion of the permission which says that clearance of rough stone shall not be permitted while ignoring that portion of the permission which says that only finished items are allowed for DTA clearance. As such, there is clear infringement and violation of the permission granted and hence the Commissioner (Appeals) order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A were unfinished/rough marble slabs appears to be irrelevant. Such evidences are required when there is either denial on the part of the party or when the evidences available are insufficient. On the other hand when there was admittance on the part of the party and also when their documents spoke of the clearance of un-finished slabs, as explained below, collecting further evidences appears to be not warranted. (d) Sri Ratnam S. Narasimhan, Production Manager of the unit and Sri P. Ajit, Manager, Finance of the unit in their statements recorded under Section 108 of Customs Act 1962 have admitted inter alia that the 'sawn marble slabs' cleared into DTA were only rough marble slabs without polishing. In other words they have admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding square) shape. (g) It is also relevant to point out that, the Commissioner (Appeals) has taken contradictory stand as for as the classification of the goods is concerned. It is on record that the goods were cleared under ch.s.h 2515.12, the party, during appellate proceedings, had also put forth an argument that the goods were rightly classifiable under chapter 68. With regard to this argument, the Commissioner (Appeals) has observed that this contention of the party was an after thought and that this was an aspect which the appellants need to take up with the competent jurisdictional authority for correct interpretation and assessment of the goods in future for classification purpose. By taking this stand, he has accepted the classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of two officials of the 100% EOU. This point also has been dealt with by the Commissioner (Appeals) in his order. He has stated simply because of the two statements of the officers of the company, one cannot come to the conclusion that the party had cleared rough marbles in the light of the other facts on record and also in view of the various processes undertaken by the party. It has also been seen that the price charged for the item sold by the party is different from the price of the rough marbles and the cost of conversion has also been included. In view of the above, we are of the considered opinion that there is no infirmity in the Order of the Commissioner (Appeals). 6. As regards the imposition of penalty under Section 117 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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