TMI Blog2016 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... r, he may be free to sell at a price lower than the maximum price fixed. So also the manufacturer has to maintain the minimum quality as stipulated in the contract. If the quality of cement goes below, as per the samples testing, then he will have to incur consequences as stated in the contract. So the maximum price and the minimum quality of the commodity having been fixed in pursuance of the Cement Control Order notified by the Government; and when there is no evidence to show that appellant sold the cement of higher quality at a higher price, merely on the basis of certain test reports it cannot be concluded that appellant has committed any suppression of facts. There is no evidence to show that the appellant were in receipt of certain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated 3.8.78 was issued to the appellant demanding differential duty. After due process, the Asstt. Commissioner vide his order dated 5.8.1980 confirmed the demand. The appellant approached the Honble Rajasthan High Court. The Honble Rajasthan High Court vide order dated 21.09.87 directed the Original Authority to decide the case afresh. Accordingly, the case was decided afresh by the Joint Commissioner vide order dated 18.03.2005. On appeal, the Commissioner directed for de novo decision vide his order dad 22.07.2005. The Original Authority, Joint Commissioner passed de novo order dated 5.12.2005 confirming the demand. On appeal, the Commissioner (Appeals) vide his order dated 11.05.2006 rejected the appellants appeal and confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In these circumstances, there is no basis to demand duty from them. They have been all along clearing only ordinary Portland cement, which is confirmed regularly by their internal testing. Certain reports by NTH indicated a higher quality cement by itself will not make them liable for higher duty as they have not collected any extra amount from the buyers. Ld. Counsel strongly contested the demand on time bar and stated that the ld. Commissioner (Appeals) is in error in indicating that the Honble High Court has settled the issue of extended period. This is factually incorrect. 3. Ld. AR, Ms. Neha Garg reiterated the findings of the impugned order. 4. We have heard both the sides and examined the appeal records. 5. The point for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific surface higher than what is contracted for supply. This is evident from the fact that they have not received any extra consideration for this higher quality. Since the test reports were obtained by the Department from NTH and no testing has been done by the Department or opportunity of re-testing was available to the appellant, the whole case of demand of differential duty only on the basis of test reports for clearances made in certain weeks cannot be sustained. 6. Regarding observation of ld. Commissioner (Appeals) on the correctness of demand for extended period, we find that there has neither been a discussion nor finding justifying the demand for extended period. He observes that the issue of invoking extended period has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commodity having been fixed in pursuance of the Cement Control Order notified by the Government; and when there is no evidence to show that appellant sold the cement of higher quality at a higher price, merely on the basis of certain test reports it cannot be concluded that appellant has committed any suppression of facts. There is no evidence to show that the appellant were in receipt of certain test reports indicating higher specific surface of 3500 CM2/g which would have established the case of mis-declaration. When the appellant were not aware of the test reports, there can be no mis-declaration of unknown facts. As such, we find that the demand against the appellant is not sustainable both on merits and on time bar. (Pronounced o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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