TMI Blog2017 (6) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... e held against the appellant - demand restricted for normal period. Classification of goods - black phenyl - classified under CTH 3808.90 or CTH 3808.10? - Held that: - the classification of these goods have been decided by the Hon’ble Supreme Court in the appellants own case for an earlier period under 3808.10 - the classification of the goods under 3808.10 which will be entitled to abatement of 35% is upheld. Clandestine removal - Seizure of goods at dealers premises - goods were received from the appellant’s factory without payment of duty - Held that: - The seized goods are claimed to be those supplied free along with invoiced quantity. Consequently we do not find any justification for confiscation of the same at the dealer’s prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.K. Mishra, DR for the respondent ORDER Per: V. Padmanabhan These appeals have been filed by M/s. Ambey Laboratories (Assessee) and other dealers from whose premises goods have been seized. The assessee is manufacturer of soap based cleaner, powder, naphthalene balls falling under Chapter 38 of the Central Excise Tariff. On information, their factory premises along with the premises of other traders were searched by the Departmental officers. On 12.09.2006 as a result of the search and also the investigation conducted thereafter, show cause notice dated 09.03.2007 stands issued to the assessee and other traders. The matter was adjudicated by the Additional Commissioner in which duty demands on various counts were upheld. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling benefit of Small scale exemption notification no. 08/2003-CE dated 01.03.2003. Duty demand of ₹ 8,97,999/- + Cess of ₹ 10,456/- stands confirmed on the above ground for the period 01.03.2003 to 12.09.2006. The submission of the appellant is that discount in any form will be allowable and even under the provisions of section 4A, such discounts will be admissible as has been held by the Tribunal in the case of Vinayak Mosquito Coil Manufacturing Vs. CCE 2004 (174) ELT 107 (Tri-Bang.). It is argued that such benefits should be extended since the appeal filed by the Department in the Hon ble Supreme Court has been summarily dismissed. We have gone through the decision cited by the appellants. However, we note that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve gone through the CBEC Circular dated 17.03.1999. Even though the circular suggests classification of impugned goods under 3808.90, we find that the classification of these goods have been decided by the Hon ble Supreme Court in the appellants own case for an earlier period under 3808.10. In view of the Hon ble Apex Court s decision, we uphold the classification of the goods under 3808.10 which will be entitled to abatement of 35%. Consequently, differential duty demand is upheld. iii) Seizure of goods at dealers premises. During the course of search proceedings, the Department seized the goods at the premises of various dealers in the belief that these goods were received from the appellant s factory without payment of duty. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the basis of periodical returns, stock registers, daily stock account mentioned by the assessee the total quantity of black phenyl manufactured was worked out and duty demand was raised on the quantity which was not accounted. The grievance of the appellant is that same raw material rosin is also used in the manufacture of another commodity, Trishul cleaner black . However the Department has not taken into account quantity of rosin used in the production of the second finished product. It has also been submitted that the production has been worked out for the period 01.02.2002 to 12.09.2006, but the figure has been taken from 01.01.2002 which is erroneous. They also have submitted the Chartered Accountant certificate in support of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods seized were the production of 10.09.2006 and 11.09.2006 and were yet to be packed in big cartons as such they were not entered in RG-1. We find that the goods said to be excess were found within the factory. The reason advanced by the appellant is fully justified and since the goods remained within the factory there is no justification for seizure and confiscation of such goods. Consequently, the confiscation is set aside and redemption fine and penalty imposed are vacated. The goods will be accounted in RG-1 and cleared on payment of duty in due course, if not already done. 4. In view of the above discussions the appeals are disposed of in the following terms: i) Duty demand of goods cleared free under quantity discount is uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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