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2016 (8) TMI 447 - CESTAT KOLKATA

2016 (8) TMI 447 - CESTAT KOLKATA - TMI - Whether the benefit of Sl.No.158 of the table annexed to Notification No.6/2002-CE dated 01.03.2002 can be extended to the Pozzolona pipes manufactured by the appellant - Held that:- as per this exemption notification if percentage of fly ash by weight is more than 25% then the benefit of exemption notification is admissible to the appellant subject to the condition prescribed at Sl.No.36 of the conditions to exemption notification no.6/2002-CE. It is ob .....

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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 penalty under Section 11AC will stand imposed upon the appellant on the re-determined duty deman .....

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appeal has been filed by the appellant against Order-in-Original No. 08/COMMR/ADJ/CE/SLG/2009 dated 25.03.2009 issued on 13.03.2009, passed by the Commissioner of Central Excise & Service Tax, Siliguri as Adjudicating Authority. 2. Sri B.N.Chattopadhyay, Consultant appearing on behalf of the appellant argued that appellant is manufacturing Asbestos Cement pressure pipes (A C pressure pipes) containing fly ash as well as without fly ash. That when fly ash is used in the manufacturing of A C .....

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s 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. Co .....

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y the Apex Court as per Collector of Central Excise, Rajkot vs.- Pattani Chemicals [1998(98) E.L.T.582(S.C.)]. He also relied upon the case law of BEE-AM Chemicals Ltd. vs.- Commissioner of Central Excise, Raigad [2004(167)E.L.T. 534(Tri.-Mumbai)]. 4. Sri A.Roy, Suptd.(AR) appearing on behalf of the Revenue argued that appellant has not disputed the test report which gave percentage of fly ash in the Pozzolona pipes as 23.6% by weight and will be applicable to the entire period as appellant s pr .....

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e to the appellant subject to the condition prescribed at Sl.No.36 of the conditions to exemption notification no.6/2002-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 invo .....

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