TMI Blog2011 (2) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... te non-accountal - there is no evidence that the appellant had any intention to illicitly remove the excess goods without payment of duty - Appeal is allowed - E/1777/2007-SM(BR) - 136/2011-SM(BR)(PB) - Dated:- 10-2-2011 - Shri Rakesh Kumar, J. REPRESENTED BY : Shri Mayank Garg and Ms. Sukriti Das, Advocates, for the Appellant. Shri R.K. Gupta, SDR, for the Respondent. [Order]. The appellant are a 100% EOU engaged in the production of marble slabs for export out of the indigenous as well as imported marble blocks. On 20th September 2005, their unit was visited by the Central Excise officers who conducted stock taking and found that there was excess stock of 21.818 sq. mtrs. of irregular marble slabs made out of imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of marble slabs by sawing of marble blocks did not amount the manufacture and as such the marble slabs made out of marble blocks were not excisable, that the marble slabs became excisable only w.e.f. 1-3-2006, when Chapter Note 6 was introduced in Chapter 25 of Central Excise Tariff, that when the goods in respect of which the confiscation has been ordered and penalty has been imposed were not excisable, there is no contravention of any excisable goods and hence the impugned order upholding the confiscation of the goods and imposition of penalty is not sustainable. He also cited the judgment of the Tribunal in the case of CCE Cus., Rajkot v. Amrut Ceramics reported in 2007 (209) E.L.T. 390 (Tri. - Ahmd.), wherein it was held that mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production could be cleared without payment of duty under proviso to Section 3(1) of the Central Excise Act, 1944, the penal provisions of Clause (d) of Rule 25(1) are invokable and that in view of this, the goods have been rightly confiscated and the penalty has been rightly imposed. 3. I have carefully considered the submissions from both the sides and perused the records. 4. Though during the period of dispute, in terms of judgment of Hon ble Supreme Court in the case of Aman Marble Industries Pvt. Ltd. v. CCE, Jaipur (supra) the marble slabs made out of marble blocks were not excisable, the appellant are a 100% EOU, who are governed by the provisions of Rule 17 of the Central Excise Rules, 2002. As per sub-rule (2) of Rule 17, the E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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