TMI Blog2015 (12) TMI 1638X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged that stock of 337 MT of precipitated calcium carbonate and 42 MT of quick lime powder which are not entered in the RG-1 register. We have seen that opening balance on 5-6-2007 as per RG-1 register. As 95 MT, 27 MT, 118 MT, 110 MT and 11 MT of precipitated calcium carbonate and production for the day 5-6-2007 was to be recorded on 6-6-2007 and the same could not be recorded due to visit of DGCEI officers on 6-6-2007 - it cannot be alleged that the seized goods were not entered in the RG-1 regiser - the demand is set aside. The raw material i.e. lime stone 40000 MT, pet coke 1000 MT and charcoal 1000 MT were also seized. The said quantity has been arbitrarily taken by eye estimation and no verification report/chart prepared and it is not possible to verify the said huge quantity of raw material in a single day - the allegation of non-accountal of goods in the statutory record is not sustainable. Demand set aside - appeal allowed - decided in favor of appellant. - E/1303-1309, 1380, 1549-1560, 1582-1594, 1649-1660/2009-EX(DB) - Final Orders Nos. 276-320/2016-CHD - Dated:- 16-12-2015 - Shri Ashok Jindal, Member (J) and Raju, Member (T) Shri Sudhir Malhotra, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powder, precipitated calcium carbonate and manufacturing lime, quick lime powder. He submitted that lime stone powder, quick lime powder, calcite fall under sub-heading 2521 00 90, 2522 10 00 and 2530 90 30 respectively and were chargeable to nil rate of duty as per Central Excise Tariff. He further submitted that only product manufactured by the appellant is chargeable to duty is precipitated calcium carbonate fall under sub-heading 2836 50 00. The appellant was availing SSI exemption and working under Notification No. 8/2003. When their factory premises were visited by the DGCEI officials on 6-6-2007, the appellant was not availing Cenvat credit facility. It was also submitted that search was conducted in the factory premises of the appellant as well as premises of some of their raw material suppliers, buyers and transporters. The DGCEI drawn 10 samples from buyers/dealers for testing. These samples were sent for testing with remarks whether the sample is Precipitated Calcium Carbonate fall under sub-heading 2836 50 00 or calcium powder. The said CRCL, New Delhi gave its report on 29-11-2007 as under :- On the basis of analytical finding as above samples do not conform to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-12-2007 for the period October, 2002 to June, 2007. 5. With regard to the seizure of finished goods and raw materials, he submitted that the stock of 337 MT of precipitated calcium carbonate and 42 MT of quick lime powder were seized on the ground that RG-1 register was not written for the day 5-6-2007. The adjudicating authority failed to appreciate the fact that there were stocks of 361 MT of precipitated calcium carbonate as opening balance on 5-6-2007 as per RG-1 register. As per RG-1 register opening balance on 5-6-2007 as 95 MT, 27 MT, 118 MT, 110 MT, 11 MT of precipitated calcium carbonate and production for the day 5-6-2007 was to be recorded on 6-6-2007 and the same could not be recorded due to visit of DGCEI officers on 6-6-2007. 6. He further submitted that the raw material i.e. lime stone 40000 MT, pet coke 1000 MT and charcoal 1000 MT were also seized. The said quantity has been arbitrarily taken by eye estimation and no verification report/chart prepared and it is not possible to quantify the said huge quantity of raw material in a single day. Therefore, the raw material and finished goods cannot be seized. 7. He further submitted that the appellant is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he search of appellant s premises. 13. With regard to the demand of ₹ 78,26,500/-, it is submitted that the adjudicating authority has arbitrarily included the value of alleged precipitated calcium carbonate towards aggregate value of home clearance. He submitted that the appellant was manufacturing both dutiable and exempted goods and their aggregate value of home clearance already exceeded ₹ 3 crore during the financial year 2003-04. He submitted that on 28-7-2004, there was search conducted in the factory premises of the appellant who verified the manufacturing activity, statutory records and resumed certain records. Further on through investigation, found that there was no case against the appellant and an intimation to this effect given to appellant vide letter dated 8-4-2005. Therefore, the duty cannot be demanded by invoking the extended period of limitation on aggregate value of clearances arrived on account of clearance of precipitated calcium carbonate, when aggregate value of dutiable and exempted clearances already exceeded ₹ 3 crore during 2003-04 and the same were in the knowledge of department. 14. With regard to the demand of ₹ 4,43,344 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45,21,421/- 4. Duty on account of clandestine clearances on the basis of GRs of M/s. Satnam Transport Co. others. ₹ 9,58,622/- 5. Duty on account of undervaluation ₹ 1,06,41,860/- 6. Duty on account of wrong availment of SSI exemption ₹ 78,26,500/- Total-A ₹ 5,93,88,396/- 7. Duty on account of seizures effected at following buyers (i) M/s. Samana Plastic, Samana ₹ 9,000/- (ii) M/s. Sakshi Markfin, Delhi ₹ 12,525/- (iii) M/s. Shubhra Chemicals, Delhi ₹ 11,948/- (iv) M/s. Mahavir Chemicals, Delhi ₹ 7,079/- (v) M/s. Mahavir Chemplast Pvt. Ltd., Jallandhar ₹ 33,680/- (vi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2 44.0 8. C.Ex/CLD/Int/Misc/32 7/Kunal/07 98.0 25.1 1.1 43.8 9. C.Ex/CLD/Int/Misc/33 5/Kunal/07 98.3 26.0 1.0 43.6 10. C.Ex/CLD/Int/Misc/34 ------------ 98.1 23.4 1.2 43.2 On the basis of analytical finding as above samples do not conform to the specification of precipitated calcium carbonate as per IS : 8767-1978. Sealed remnant returned. 19. The said report clearly shows that the samples drawn do not conform to the specification of precipitated calcium carbonate as per IS : 8767-1978. On the said report, no finding has been given by the chemical examiner with regard to classification but clearly stated that these are the samples drawn are not of precipitated calcium carbonate. As it is fact on record, the appellant is manufacturer of lime stone, quick lime powder, calcite which are chargeable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les were drawn and on the basis of diary recovered from Mukul Kumar, Lab Assistant, who was maintaining the diary for all products. In that circumstance, in the absence of any corroborative evidence to show that all records maintained by Shri Mukul Kumar of PCC the demand is not sustainable and therefore, the demand of ₹ 45,21,421/- is set aside. (iv) The duty of ₹ 9,58,622/- has been demanded on the basis of blank GR s recovered from premises of M/s. Satnam Transport - We have seen GR s recovered from premises of M/s. Satnam Transport are blank GR s. GR does not describe the quantity and description of the goods, the demand cannot be confirmed on the basis of assumption and presumption. As no corroborative evidence has been produced on record, therefore, the demand of ₹ 9,58,622/- is set aside. (v) The demand of ₹ 1,06,41,860/-, the said demand has been confirmed on account of undervaluation by considering the goods cleared as precipitated calcium carbonate - We have seen that it is alleged that the appellant has not declared the true value of the goods on the charge that the goods were precipitated calcium carbonate which is having higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty is not imposable on this ground. 21. We have seen that during the course of investigation it is alleged that stock of 337 MT of precipitated calcium carbonate and 42 MT of quick lime powder which are not entered in the RG-1 register. We have seen that opening balance on 5-6-2007 as per RG-1 register. As 95 MT, 27 MT, 118 MT, 110 MT and 11 MT of precipitated calcium carbonate and production for the day 5-6-2007 was to be recorded on 6-6-2007 and the same could not be recorded due to visit of DGCEI officers on 6-6-2007. If all these records taken into consideration, it cannot be alleged that the seized goods were not entered in the RG-1 regiser. Therefore, the said charge is not sustainable and the demand on this account is set aside. 22. We further find that the raw material i.e. lime stone 40000 MT, pet coke 1000 MT and charcoal 1000 MT were also seized. The said quantity has been arbitrarily taken by eye estimation and no verification report/chart prepared and it is not possible to verify the said huge quantity of raw material in a single day. Therefore, the raw material and finished goods cannot be seized. In that circumstance, the allegation of non-accountal of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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