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TMI Blog2015 (10) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... and regarding denovo adjudication, the entire matter was at large for denovo adjudication and not only the question where excess weight over and above standard excess weight was part of the trade practice of Industry manufacturing and selling carbon black? C. Whether the order passed by the Central Excise and that of the Tribunal being violative of principles of natural justice as no opportunity was given to the appellant regarding the evidence obtained from Hitech Carbon and Philips Carbon Ltd., behind the back of the appellant, specific ground has been taken by the appellant in ground no.8A/11 and the Tribunal was not justified in considering and deciding the same? D. Whether in spite of the weight of packing material having been mentioned in the invoice and in spite of the fact that standard excess weight, which only represent weight of the packing material being entirely different than weight of excess quantity of Carbon black, the Tribunal was not justified in not deciding the said question while confirming the demand? E. Whether no additional consideration having been admittedly received by the appellant in respect of the alleged excess quantity hence no duty was paid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de its order dated 19th October, 2000 for de novo adjudication, and therefore, the finding in the impugned order that the remand was for limited purpose, is incorrect. He submits that the finding of clandestine removal is not based on any evidence on record. 4. In support of his submissions, he relied upon the judgment of Hon'ble Supreme Court in the case of Mann Aluminium Vs. Commissioner of Central Excise, Indore, 2015 (322) E.L.T. 184 (S.C.) and the judgment of Privy Council in the case of M.R. Ramanujam Vs. King Emperor (1935) ILR 58 PR 523. 5. Learned counsel for the respondents submits that the impugned order of the Tribunal does not suffer from any infirmity inasmuch as by the earlier Final Order dated 19th October, 2000, the Tribunal has remanded the matter to the Adjudicating Authority for limited purpose. He further submits that the Tribunal has recorded a finding of fact that the matter was remanded to the Adjudicating Authority with limited direction to ascertain trade practice of over-filling of carbon black, but, the appellants could not bring any material on record to show that such a trade practice did exist in respect of carbon black. 6. We have carefully co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that approximately the input output ratio between carbon black feed stock and the carbon black was to the order of 2 : 1 and therefore, yield percentage would be approximate 50%. If this is the ground reality as advanced by the party, then they could have computed and submitted the figures of the raw material consumed and the end product cleared on payment of duty during the relevant period in order to enable the Commissioner to examine the proposition as advanced by them but it has not been done. The appellants also do not quarrel with the findings of the Commissioner that the expression 'net weight' is to denote the difference between the gross weight and the tare weight and therefore, net weight is exclusive of the packing material namely the empty paper bags and wagon liners. They however contest the findings that the tare weight would represent only the weight of empty truck. The difference between the gross weight and the tare weight being the net weight, such a net weight would include weight of the packing material and the weight of the paper bags/ wagon liners that are used for transporting the carbon black. The Commissioner, on examination of this submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his submission. It is observed that the appellants did raise the contention before the adjudicating authority that the carbon black packed and stored in bags for despatch was incapable of precise measurement and it was impossible for them to precisely weight 25 kg. of carbon black. Consequently they were slightly over-filling the bags so that in instance of weighment of bags by customers, the bag of less than 25 kg. of material could not be found. The Commissioner has dismissed this proposition by observing that such practices is not normally adopted in the trade. This observation by the Commissioner does not seem to be tenable. The department has not conducted any query regarding the trade practice of over-filling the bags in respect of this commodity. That there does not exist such trade practice in respect of some other commodities is evidenced even by the decisions cited before us by the appellants (supra), which led to the dispute and consequently the cited decisions. We therefore, feel that this aspect needs to be looked into in depth by the original authority. We accordingly set aside the order of the Commissioner and remand the matter to him for de novo consideration. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmodities? (ii) Whether the facts & figures, submitted by the party of cumulative excess filling of carbon black vis-a-vis total quantity dispatched by them on payment of duty to various parties furnished by them in terms of CEGAT's order are correct or not?" 10. Being aggrieved the appellants filed Central Excise Appeal No.3441-43/2004-NB(A) before the Tribunal, which was dismissed by the impugned Final Order dated 19.10.2004 observing that the matter was remanded only to ascertain the trade practice of over-filling bags in respect of carbon black, but the appellants could not bring any material to show that such a trade practice did exist in respect of carbon black. Being aggrieved, the appellants filed the present appeal. 11. The first point as reproduced above was considered by the adjudicating authority in para 7.2 to para 7.3.5 and it was held that the assessee's contention that there was trade practice of overfilling carbon black in bags does not seem to be correct in view of the inquiry report received from Central Excise Commissionerates Allahabad and Bolpur with respect to two manufacturers of carbon black namely M/s Hightiech Carbon Renu Koot and M/s Philips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e significance. In the case of Commissioner of Central Excise Mumbai vs. Fiat India Pvt. Ltd. 2012 (283) ELT 161 (S.C.) Para-24, the Hon'ble Supreme Court held as under: "24. Section 3 of the Act provides for levy of duty of excise and Section 3(i) thereof states that there shall be levied and collected in the prescribed manner, a duty of excise on excisable goods manufactured in India at the rates set forth in the first Schedule. Neither Section 3 nor the first Schedule lays down the manner in which ad valorem price of the goods has to be calculated. This is found in Section 4 of the Act. Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed. The duty of excise is linked and chargeable with reference to the value of the exercisable goods and the value is further defined in express terms by the said Section. In every case, the fundamental criterion for computing the value of an excisable article is the normal price at which the excisable article is sold by the manufacturer, where the buyer is not a related person and the price is the sole consideration. If these conditions are satisfied and proved to the satisfaction of the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea was specifically raised by the appellant in explaining that there was no difference in the quantities and thus, no question of any clandestine removal of the goods from the premises, the said plea has not been adverted to and there is no reference made to the aforesaid material produced by the appellant. It is stated at the cost of repetition, that only on the basis of so called admissions made by Mr.Mansukhani and Mr. Deepak Das, the authorities jumped to the conclusion without undertaking any further exercise. Such an order of the CESTAT which is confirmed by the High Court does not stand legal scrutiny and therefore, these orders are liable to be set aside. We, accordingly, allow this appeal and quash the demands raised by the authorities." 16. In view of the above discussions, the impugned Final Order of the Tribunal dated 19.10.2004 cannot be sustained and is hereby set aside. To do justice, the matter is remitted back to the Tribunal with the following directions to pass an order afresh in accordance with law, expeditiously, preferably within six months from the date of production of a certified copy of this order: (i) The Tribunal shall examine whether there was any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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