TMI Blog2015 (10) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... removal of S.O. Dyes by the main appellant is not sustainable as there is no evidence of clandestine removal of the goods calculated on the basis of entries made in the Blender register of the main appellant. - Decided in favour of assessee. - Appeal Nos. E/818, 819/2011 - Order No. A/11146-11147/2015 - Dated:- 30-7-2015 - H. K. Thakur, Member (T) For the Petitioner : Shri K I Vyas, Adv For the Respondent : Shri Lalatendu Patra, AR ORDER Per H K Thakur These appeals have been filed by the appellants against OIA No. DA/06-07/DMN/VAPI-I/2011-12 dated 21.04.2011 passed by Commissioner (Appeals), Vapi; as first appellate authority; under which OIO No. Vapi-I/OA/35/2007-08 dated 31.12.2007 decided by the Adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of ₹ 1,55,368/-. That the seizure portion of the case was decided against the main appellant but on appeal the same was set-aside by Commissioner (Appeals) and that order has been accepted by the Revenue. That the second show cause notice for ₹ 1,55,368/- was decided under OIO dated 31.12.2007 and confirmed under OIA dated 21.4.2011 against which the present appeals are filed by the appellants. 2.1 It was the case of the appellant that lower authorities mainly relied upon the blender register/notebook which reflects the semi-finished goods and can not be the basis for entering the same in RG-1 register. Moreover, the said notebook was exclusively meant for production of the goods that has varied grades of S.O. Dyes as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Abir Chemicals Limited vs. CCE, Surat (supra) to argue that there was no clandestine clearance as the goods recorded in the Blender register and not entered in the RG-1 register did not reach RG-1 stage. That statements of Shri Krishnadev S. Choubey, Technical Director-cum-Authorised Signatory has not admitted anywhere that goods entered in Blender Register were ever cleared clandestinely. 3. Shri Lalatendu Patra (AR) appearing on behalf of the Revenue defended the order passed by the first appellate authority. Learned AR made the Bench go through Para 4.3 of the OIA dated 24.4.2011 to argue that case law relied upon by the appellant is not in their favour as CESTAT in that case has also observed that Dye intermediates can not be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff Act 1985, Chapter Note 6 to that chapter shows that addition of diluants or mixing of dyes to make them ready for use is a process of manufacture. The Tariff description of sub-heading 3204.29 is a residuary sub-heading of S.O. dyes which is other than in unformulated or unstandardised or unprepared form not ready for use. Viewed in this context of the Tariff heading and Chapter Note, credence has to be given to the claim made by the appellants at the earliest opportunity on the day the panchnama was prepared that the goods were not recorded in RG 1 Register because they were required to be standardised as per Customers requirements (see statement of V.J. Modi, General Manager - Works dated 21-6-1996). They had also taken the plea tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese statements are not inculpatory. There is no other evidence on record that there is any clandestine clearance of S.O. Dyes out of the batches mentioned in the Blender register except presumptions and surmises made in the show cause notice. Further appellate authority has wrongly distinguished the case law relied upon by the main appellant on the basis of observations made by the Bench in Para 5 of the order in the case of Abir Chemicals Limited vs. CCE, Surat (supra). The observations made in Para-5 made by CESTAT were with respect to Dye intermediates and not S.O. Dyes. Accordingly, it is held that case of clandestine removal of S.O. Dyes by the main appellant is not sustainable as there is no evidence of clandestine removal of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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