9911796707
TMI Blog2000 (2) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... the buyers noted some defect in the machine and hence returned the same to the appellants under cover of letter dated 14-1-1997 along with all the original documents under which the machine had been received by them. Soon after receipt of the returned goods, the appellants gave D-3 intimation to the Department under Rule 173L of the Central Excise Rules, declaring that one auto copying lathe machine, on which duty had been paid as per invoice No. 26 dated 18-12-1996, was received from M/s. Shiv Machine Tools on 27-1-1997 for being remade/repaired/reconditioned under Rule 173L (under refund of duty). This declaration was duly received by the Department on 28-1-1997. Later on, the appellants cleared the machine, after rectification of the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration was received by the Department on 27-1-1997. In the said declaration, the appellants had specifically stated that the goods were received under Rule 173L for the purpose of remaking/reconditioning/repairs (under refund of duty). This fact is also not disputed. It is also not disputed that no officer of Central Excise had done physical verification of the returned goods as required under proviso (ii) to sub-rule (1) of Rule 173L. All the documents evidencing the original clearance of the goods to M/s. Shiv Machine Tools and the return thereof by the said party and the payment of duty on such original clearance had been furnished by the appellants to the Department along with D-3 declaration. This is, also, not in dispute. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibid. It is pertinent to note that the party had specifically given an indication to the Department, in their D-3 declaration, that they would be claiming refund of the duty paid on the original clearance of the goods. In spite of this clear indication of the intention of the party to claim refund of duty, it did not occur to the Department that they should undertake the physical verification of the goods. This omission to have undertaken physical verification of the goods upon receipt thereof by the appellants under Rule 173L is, in my view, bound to be fatal to the Department's case in the present appeal. Both physical examination of the goods and verification of the relevant records ought to have been done by the Central Excise authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authorities. The ld. DR had seriously opposed the submissions of the ld. Advocate. He has submitted that the appellants had paid Central Excise duty at a higher rate on the clearance of the goods to third party under Invoice No. 32 dated 25-3-1997 than the rate at which duty had been paid by the appellants on the earlier clearance of the goods to M/s. Shiv Machine Tools under Invoice No. 26 dated 18-12-1996. According to him, this very difference of duty is enough for inferring that the goods cleared subsequently was different from the one cleared earlier. I am not able to accept this plea of the ld. DR, which is a new case set up at this late stage. Neither the Assistant Commissioner nor the Commissioner (Appeals) has raised such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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