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2022 (12) TMI 902 - AT - Central ExciseClandestine removal - Leviability of duties of central excise on product deemed by law to have been manufactured - short-payment of duty on another product by misdeclaration of quality - packing and labelling - process amounting to manufacture or not - HELD THAT:- It is seen from the impugned order that the adjudicating Commissioner has, instead of subjecting the impugned activity to the test of conformity to note 9 of chapter 28 of Schedule to Central Excise Tariff Act, 1985 and noticeably so in the sparse findings therein, merely taken up the reliance placed upon the decision in re Ammonia Supply Company and other decisions following therefrom for disputation, by contriving a test derived by him from the findings therein which the impugned activity has been held to have not passed muster, and found sufficing to confirm liability to duties of central excise. It is akin to a step-down transformer that brings high tension electrical energy to the homes of consumers. Being a hazardous substance, there is legal requirement of affixing labels detailing source and handling instruction. There is, thus, packing and labelling and it was to be determined if these conform to the prescriptive threshold envisaged by the impugned note that is composed of four process with each of them standing on their own for manufacture to be deemed. We fail to see any finding that, with reference to the facts, narrows the impugned activity to one of the four alternatives. It is regrettable that adjudication is, at times, perceived as response to resistance put up by noticee instead of as a responsible exercise of determining, from established fact, either breach of statutory boundaries or inapplicability of context for escapement. That deficit must be made good before appellate determination can commence. The determination of breach as far as the ‘liquid bromine’ seized from the manufacturing entity is concerned has been influenced by the finding of the adjudicating Commissioner and the taint therein infects the outcome before the first appellate authority in the second set of appeals requiring fresh determination. The tax liability has been fastened by resort to assumptions driven by absence of satisfactory explanation. Clandestine clearance, being provable only by circumstantial evidence, should be determined by reference to circumstances including complexion of the transactional engagement in which the submissions made in defence are required to be dealt with. The lack thereof in the adjudication order impugned here must be made good. Matters remanded back to the respective adjudicating authorities for proper discharge of statutory obligation - Appeal disposed off by way of remand.
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