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TMI Blog2013 (12) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... RDER Both the appeals are being disposed of by a common order as they arise out of the same impugned order passed by Commissioner (Appeals) which he has confirmed duty of Rs. 1,78,582/- along with imposition of penalty of identical amount in one appeal and has confirmed the demand of duty of Rs. 36,622/- along with imposition of penalty of identical amount in the other appeal. After hearing both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the appellant failed to show. 2. Accordingly proceedings were initiated against the appellant by way of issuance of show cause notices dated 11-11-2008 and 5-5-2009, which culminated into an order passed by the original adjudicating authority confirming demands, along with interest and imposition of penalties on the allegation and findings of clandestine removal. The said order of the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the appellant has not been able to substantiate their stand of damage. I find that it is well settled that the goods, which require testing and get consumed during such testing cannot be held to be marketable and hence excisable and duty not required to be paid on the said poles. Tribunal in the case of Collector of Central Excise v. M/s. Sudershan Beopar Co. Ltd. - 1993 (64) E.L.T. 359 (Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Collector of Central Excise v. M/s. PCC Poles Factory - 1989 (41) E.L.T. 676 (Tribunal) has held that breaking and scrapping of defective cement poles is not a process of manufacture, hence not liable to duty. 4. As such, it is seen that the law is clear on the disputed issue. The lower authorities have not accepted the appellant stand of scrapping the poles as broken on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their being any other evidence to reflect upon the said fact. As per the settled law, onus to prove the clandestine clearance is on the Revenue, which is required to be discharged by production of sufficient evidence. In the present case their being none and entire case having been made out on the basis of non-production of records in respect of broken poles, I find no justification to uphold the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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