TMI Blog2017 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... resent the composition of the entire waste and scrap therefore test report alone cannot be relied upon to conclude the demand - once the test was conducted and the appellant found that same is not correct while requesting for retest appellant should have asked for the specific parameter for conducting retest such as how much material to be tested and in what manner. I find even in the second test also the composition of the content of aluminium is on higher side. Matter to be reconsidered by the adjudicating authority - appeal allowed by way of remand. - E/1614 & 1615/10-MUM - A/88572-88573/17/SMB - Dated:- 19-7-2017 - Mr. Ramesh Nair, Member(Judicial) Ms. Aparna Hirandagi, Advocate for the Appellants Shri. M.R. Melvin, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated vide OIO dated 12-10-1999 by the addl. Commissioner wherein demand of ₹ 519999/- was confirmed, penalty was imposed under section 11AC and ₹ 5000/- under Rule 173Q and personal penalty of ₹ 2000/- was imposed on Shri. N.B. Khan of M/s. A. Nizami and Co. The appellant preferred an appeal before Commissioner(Appeals) who vide his order-in-Appeal dated 28-7-2000 remanded the case back to the original adjudicating authority to decide upon the case after determining the correct aluminium content by retest of the remnant samples or by other collateral evidences after complying with the principles of natural justice. In the mean time on the same ground the appellant was issued three other show cause notices for the subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um, therefore both the test report was disputed by the appellant on the ground that the test was not conducted properly by taking substantial quantity. She submits that in the show cause notice it was alleged that there is no provision to remove the scrap without payment of duty under job work procedure of Rule 57F and permission earlier granted to remove the scrap under Rule 57F admittedly stood cancelled. In this regard she submits that issue whether the waste and scrap can be cleared for job work without payment of duty under Notification No.214/86-CE dated 25-3-1986 has been settled in the following judgments: (a) Wyeth Laboratories Ltd [2000(120) 218(T-LB)] (b) CCE Vs. Plastika Ind.[2016(335) ELT 574(T)] (c) La Prenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has presumed metal recovery from dross and residue as 75.8% and 77.6%. She further submits that Chief Chemist has arrived at the quantum of aluminium metal contained in the samples sent for testing and not the quantum of aluminium metal that can be recovered by refining such Aluminium ash, residue, waste, scrap, dross, skimmings etc. she also submits that sample tested was 0.267 gms out of sample size of 220 gms that was confirmed in the cross examination of the Chemical Examiner dated 31-7-2000 She submits that it is impossible task to recover 86.8%/75.8% of aluminium metal on the basis of tests from samples of 0.267 gms tested. She further submits that percentage of metal as arrived at in the Test Reports dated 20-11-1997/27-6-2001 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when ingredient like fraud, collusion willful misstatement are present whereas in the present case there is no suppression of fact as the percentage of metal contained was known only by chemical test therefore penalty under Section 11AC is not invokable. Penalty under Section 11AC and Rule 173Q cannot be imposed in view of the following judgments: (a) Kamlesh Kumar Goel[2008(223) ELT 65(T) (b) Datafield India Ltd[2007(147) ECR 316(T)] upheld by Hon'ble Madras High Court [2016(334)ELT A209(MAD)] (c) Benzo Chem Ind (P) ltd. [2007(2016) ELT 94(T]) For the reason given above penalty under Rule 209A is also not imposable on the job worker, proprietor and Nizami Co. 3. On the other hand, Shri. M.R. Melvin, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and scrap therefore test report alone cannot be relied upon to conclude the demand. The adjudicating authority has not considered any other aspect. As regard the appellant, I find that once the test was conducted and the appellant found that same is not correct while requesting for retest appellant should have asked for the specific parameter for conducting retest such as how much material to be tested and in what manner. I find even in the second test also the composition of the content of aluminium is on higher side. The adjudicating authority also not considered the limitation properly and also invocation of Section 11AC and Section 11AB as the same was effective from 29-8-1996. As per my above discussion, I am of the considered view t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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