TMI Blog2017 (8) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... LDPE and purchased HDPE and PP and no evidence has been brought on record by the Revenue that the appellant has purchased LDPE. In the absence of evidence on record without bringing on record how the goods manufactured from LDPE, the demands are not sustainable. Whether the show cause notice is sustainable or not? - Held that: - It is seen that as per test report, deniers of the goods in question is 305.55 which is equal to 339.5 decitex. As per Section XI of Textile and Textile Articles, clause 12 (A) (b) states that man-made fibres (including yarn of two or more mono-filaments of Chapter 54), measuring more than 9000 deniers which is equal to 10000 decitex as per HSN. The adjudicating authority without any reasoning classified the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2.1993 and for mono-filament yarn, they were claiming exemption under Notification No.8/96-CE dated 23.09.1996 as amended from time to time. As per notification No.8/96 ibid, mono-filament of High Density Polyethylene or Polypropylene attracts nil rate of duty if no credit under Rule 57A or 57Q of the Central Excise Rules, 1944 is availed. On 27.03.1998, a tempo was intercepted and on examination, it was found that it was containing twisted plastic ropes whereas cash memo No.394 dated 27.3.1998 showing the description of the goods as MF yarn. The goods were seized, on reasonable belief that the twisted plastic ropes were cleared under the guise of MF yarn for which a separate show cause notice had been issued on 25.9.1998. Further, invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Note: It is not possible to determine the specific gravity of the polymer on additive free basis, sealed remnant returned. Later on a query was made by the Assistant Commissioner to advice the office to which are other approved laboratories where such testing could be done to find out gravity of polymer on a additive free basis. Instead of advising about approved laboratories, the chemical examiner gave his report that specific gravity of the sample has been found to be 0.917 which would indicate if to be low density polyethylene, the sample has been found to be of 339.5 decitex. 4. It is his submission that initially the chemical examiner was not able to test gravity of the polymer but later on, the chemical examiner on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10000 decitex as per HSN. He further submits that all the activities of the appellant were in the knowledge of the department at the time of issuance of initial show cause notice dated 25.9.1998. Therefore, in view of the decision of Hon ble Supreme Court in the case of Nizam Sugar Factory-2003 (155) ELT A-145 (SC), the show cause notice is not sustainable. 5. On the other hand, learned AR reiterated the findings of the adjudicating authority and submits that as per the report of the Chemical Examiner the goods are found low density. Therefore the appellant is not entitled for exemption under Notification No.8/96-Central Excise Therefore, the impugned order is to be upheld. 6. Heard both sides and considered the submissions of both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss examination, the chemical examiner never stated that they keep the sample in their records and on the basis of those samples, the 2nd report was submitted but in cross examination when specific query was made to him, the chemical examiner did not given any explanation but the adjudicating authority sought explanation for the same, it was answered as under: Please refer to your office letter C.No.V(56)15/20-CE/2000 dt.10.11.05 on the subject cited above. In this connection, the clarification reply has been received from Shri A.H.M. Shand, the then Chemical Examiner vide his letter dated 18.11.2005, the relevant portion is being cited above:- In this connection, I am to state that report on the sample in dispute was issued on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles, clause 12 (A) (b) states that man-made fibres (including yarn of two or more mono-filaments of Chapter 54), measuring more than 9000 deniers which is equal to 10000 decitex as per HSN. The adjudicating authority without any reasoning classified the goods in question, one plastic ropes which less than 10000 deniers to demand duty. Therefore, without classifying the impugned goods, the adjudicating authority cannot demand duty from the appellant. On this account also, the demand is set aside. 11. We find that in the adjudication order, the adjudicating authority, has relied upon on the decision of Larger Bench in the case of Nizam Sugar Factory to say that the show cause notice is sustainable, the decision of the Larger Bench has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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