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2017 (6) TMI 374 - AT - Central ExciseValuation - Quantity discount - includibility - Held that: - quantity discount will not be allowable for determination of duty liability u/s 4A - the appellant assessee has been following the long standing practice of granting such quantity discount to their traders. This was being mentioned in ER-1, RG-1 and invoices regularly. The records of the assessee were also being periodically audited by the Department. Consequently, any allegation of willful suppression of facts with intention to evade payment of duty cannot be held against the appellant - demand restricted for normal period. Classification of goods - black phenyl - classified under CTH 3808.90 or CTH 3808.10? - Held that: - the classification of these goods have been decided by the Hon’ble Supreme Court in the appellants own case for an earlier period under 3808.10 - the classification of the goods under 3808.10 which will be entitled to abatement of 35% is upheld. Clandestine removal - Seizure of goods at dealers premises - goods were received from the appellant’s factory without payment of duty - Held that: - The seized goods are claimed to be those supplied free along with invoiced quantity. Consequently we do not find any justification for confiscation of the same at the dealer’s premises - confiscation, redemption fine and penalty set aside. Clandestine removal - Production as per input-output ratio - demand on the ground that production of goods, was suppressed when it is estimated in terms of the input output ratio - Held that: - The allegations of clandestine production and clearance are grave and hence is required to be backed by tangible evidence. The onus is on the Revenue to establish on the basis of evidences, the quantity of goods alleged to have been clandestinely manufactured and cleared - In the present case, other than the mathematical projection of the possible production, no corroborative evidence has been produced by Revenue to support the charge of clandestine manufacture and clearances - without tangible evidence, charge of clandestine clearances cannot be upheld - demand set aside. Clandestine removal - seizure at factory - Held that: - the goods said to be excess were found within the factory - since the goods remained within the factory there is no justification for seizure and confiscation of such goods - confiscation, redemption fine and penalty set aside. The case is remanded to the adjudicating authority for the limited purpose of re-quantifying the demand and to re-determine penalties - appeal allowed by way of remand.
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