9911796707
TMI Blog1991 (5) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... by wrongly availing the benefit of exemption under Notification No. 191/80 dated 8-12-1980. 2. The appellants are the manufacturers of a wide variety of paper including printing and writing paper containing not less than 75% by weight of pulp made from bagasse. They had been availing of the benefit of Notification 191/80 under which printing and writing paper falling under TI 17(1) of the erstwhile first Schedule to the Central Excises & Salt Act, 1944 containing not less than 75% by weight of pulp made from bagasse was exempt from the whole of the duty of excise leviable thereon. The appellants had filed classification lists for this purpose which were approved on 23-8-1984. A show cause notice dated 18-9-1985 demanding duty on the paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (a) They had maintained statutory records such as log books containing all the details required to be entered in the form prescribed in the Trade Notice. (b) The formula adopted by the Department is incorrect as it takes into account only the consistency of the bagasse pulp and wood pulp used whereas the flow rate is more relevant. (c) The flow itself was maintained at 77% of bagasse and 23% of wood pulp to ensure that ultimately the ratio between the two was not less than 75 : 25. The Assistant Collector by order dated 30-6-1986 confirmed the demand disallowing the benefit of the exemption notification. The lower appellate authority having upheld the order of the adjudicating authority, the appellants have preferred this appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the quantity discharged each time could be noted and total quantity passed on to the two chests can be ascertained. The provisional assessments were finally assessed on 23-8-1984. In this view of the matter the learned Counsel submits that the Department has acquiesced in the maintenance of records by the appellants in the same manner in which they were being maintained prior to the issue of the Trade Notice. Therefore, non-observance of the procedure set out in the Trade Notice viz. non-maintenance of Form A & B Registers cannot be held against the appellants. 5. Regarding the discrepancies in the appellants' own records the argument is that the valves are adjusted admittedly in 78 : 22 ratio and not 75 : 25 as wrongly prescribed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appellants upon the directions of the Bench filed the following documents : (i) Illustrative copies of log book for the period September 1985 showing consistency of Bagasse pulp. (ii) Illustrative copies/extracts from bagasse and wood pulp consistency register for the above-said dates showing consistency of bagasse pulp and wood pulp. (iii) Illustrative copies/page from log book for 14-1-1986 & 17-1-1986 showing sealing of the valves by Central Excise Officers for bagasse and wood pulp in the ratio of 78 : 22. (iv) Illustrative pages establishing mixing ratio as 79 : 95 : 20.5. (v) Flow chart 8. Log books in question have been maintained as per the directive and with the concurrence of the Assistant Collector and other Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulp and bagasse pulp is not the same. From the log book the company works out exact consumption of bagasse pulp for the entire day. After making necessary adjustments for opening balance and closing balance, that day's consumption of bagasse is arrived at. The machine production is taken at actuals for that day. Thereafter the percentage of bagasse pulp content is arrived at. Whenever percentage is more than 75 exemption is availed. These calculations are checked and approved on a daily basis by the officer posted in factory. The pipelines carrying bagasse pulp and the wood pulp are fitted with valves to control the flow of the pulp fed to the blending chest where mixing of pulp takes place. The valves are sealed by the Central Excise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny has been making adjustments in the log book for opening balance and closing balance of bagasse pulp to arrive at the actual bagasse consumption in a day and these calculations have been duly verified and certified by the authorities themselves on a day-to-day basis. However, in the present calculations adopted by the Department in the impugned order, no adjustments whatsoever have been made for the opening balance and closing balance for the period of time considered by them. (vi) It is not correct for the Department to hold that sealing of the valve and 78 and 22 is averaging for the entire day as there is no averaging involved. In fact it represents sealing of the valve to the blending chest of the two sources of pulp. The log book re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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