TMI Blog2008 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... H(i) has been filed by the Department against the final order of the learned Tribunal dt. 8.11.2000, negativing the claim of the Department, about the assessee having mis-declared the article as aluminium plates, through M/s. P.G. Foils as, as a matter of fact the article was unwrought aluminium. 2. The facts of the case are, that the officers of the Department visited the factory of the respondent assessee during 8.1.92 to 11.1.92, and found, that the assessee was availing Modvat Credit on aluminium plates, falling under sub-heading 7606.10 of the Central Excise Tariff Act, 1985 on the central excise gate passes, issued by M/s. Padmavati Metal Industries and M/s. Prakash Metal Works, both of Ahmedabad. These units issued gate passes in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Modvat declaration submitted under Rule 57-G of the Rules. Thus, the receipt of the product, received in their factory premises was alleged to have been suppressed by them willfully, and credit of central excise duty was incorrectly availed by the assessee amounting to Rs. 65,44,206.90. 3. Thereupon a show cause notice was issued, to which a reply was submitted, and the learned Collector, Central Excise confirmed the demand of central excise duty, amounting to Rs. 65,44,206.90 against the assessee respondent, and a penalty of Rs. 5 lacs was also imposed under Rule 173Q(1)(bb). 4. This order was challenged by the assessee by filing appeal before the Customs, Excise Gold (Control) Appellate Tribunal, which was decided vide final or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose any penalty on the present appellant. 5. The present application was admitted vide order dt. 23.7.2001. 6. Assailing this order of the learned Tribunal the present application has been filed, requesting for calling for a reference under Section 35H(i) of the Central Excise Act. Substantiating this application, it was contended by the learned counsel for the applicant, that it is more than clear on record, more so from the expert opinion report, given after chemical examination of the substance, that the input found was unwrought aluminium, and did fall under sub-heading 7601.90, and simply because the assessee got it under the documents from M/s. P.G. Foils, which in turn had purchased from M/s. Padmavati Metal Industries and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s removed by them with intent to facilitate the buyer to avail of credit of the duty in respect of such goods. Surprisingly in this very para the last sentence had also been added, that M/s. Prem Cables (present respondent assessee) had not bought the goods from these parties, and therefore provisions of Rule 173Q(1)(bb) are not applicable. Likewise, a further look at the order of learned Collector shows, that before the Collector, the assessee claimed to have availed the Modvat credit under Rule 57G under valid GP-1s issued by the Ahmedabad units, on the strength of approved classification list, while the Department had not adduced any evidence, that the material received from the Units of Ahmedabad was disposed off, and other material was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g not aware about the correct description of the goods was not believed. 10. In our view, the findings recorded by the learned Collector are self contradictory, inasmuch as all through the parties were ad-idem, on the question, that the inputs found in the factory of the assessee, were inputs, acquired by it under gate passes of M/s. Prakash Metal Works and M/s. Padmavati Metal Industries endorsed by M/s. P.G. Foils, and that the classification of the goods was incorrect. As against this, when it being nobody's case, and without there being any material in this regard, the last line of para-18 holds, that the assessee had not bought the goods from these parties, and what overall impression the order of the learned Collector creates i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts acquired by it are the goods, on which appropriate duty, as indicated in the documents accompanying the goods has been paid. (emphasis supplied) 12. From a perusal of the order of the learned Collector, and the submissions of the Department, it transpires, that the whole plank of the Department is the subsequent chemical analysis of the substance found, and in such analysis, it being found to be unwrought aluminium. Suffice it to say, that when the suppliers have been exonerated, conceding any right, as claimed by the Department, in this matter, would indirectly amount to allowing them to assail the correctness of the classification of the concerned jurisdictional authorities, who had duly certified the goods at the time of excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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