TMI Blog2016 (8) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... in as much as percentage of fly ash was less than 25%. Accordingly, demand raised for the period from 23.08.2007 is required to be confirmed, along with interest, and penalty under Section 11AC of the Central Excise Act is imposable. Since the duty demand from 23.08.2007 is not separately quantified in the proceedings and was also not made available to the bench by either sides, therefore, Adjudicating Authority is directed to quantify such amount of duty on AC pipes, claimed as Pozzolona pipes, for the period from 23.08.2007 till the end of demand period involved in these proceedings. For this purpose appellant should be given an opportunity to explain their case on quantification of demand and thereafter calculation of amount of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed specific letters alongwith monthly returns indicating the percentage of fly ash to be more than 25% and quantities of Pozzolona pipes manufactured and cleared. That on 23.08.2007 departmental officers drew sample from the Pozzolona pipes and got the same tested from IIT, Roorkee. That as per test report received from IIT, Roorkee, Uttaranchal, the percentage of fly ash by weight was less than 25% and accordingly appellant was issued show cause notice for disallowing the benefit of Notification No.06/2002-CE and also to include the value of these clearances for the purpose of Notification No.8/07-CE. Ld. Consultant argued that extended period before the date of drawal of sample on 23.08.2007 cannot be made applicable as appellant has give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-CE. The sample was drawn on 23.08.2007 by the department and was got tested at IIT, Roorkee, Uttaranchal. Appellant has not contested the test report. However, it is the case of the appellant that any test report will have prospective application. Appellant has relied upon the case law of Pattani Chemicals vs.- Collector of Central Excise (Supra). In this case the product involved was Ordinary Portland Cement where a sample was drawn and sent to Chemical Examiner, Kandla. In this case the larger bench held that results of a test will have only prospective application. This order passed by the larger bench has also been upheld by the Apex Court. In the case of Hindustan Fibres Ltd. vs.- Commissioner of C.Ex., Jaipur [2009(245) E.L.T.337( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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