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TMI Blog2018 (1) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty. They also import soda ash availing full customs duty exemption under Advance License / Advance Authorization Scheme in terms of Notification No.43/2002-Cus. and Notification No.93/2004-Cus. Appellants availed CENVAT credit for the duty paid on soda ash on the CVD quantum. In investigations caused by the department, it appeared that the appellants though had utilized major portion of the imported soda ash for manufacture, however, had also cleared the goods from time to time, as such to various persons under cover of invoices. During investigation, appellant submitted stock statement of soda ash for the period 1.4.2004 to 31.8.2007 inter alia opening stock, receipts and total consumption and quantities removed from their fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also imposed on Shri V. Jothi under section 112A of the Customs Act. Hence these appeals. 2.1 On behalf of the appellants, Id a counsel Shri C. Saravanan submits that out of the three Advance Licenses / Advance Authorizations under which the duty-free soda ash had been imported, the department has alleged diversion of duty-free soda ash as follows:- S. No. Adv. Lic /Auth. No. / Date BE No. Date Qty (MT) Alleged diversion qty (MT) Year 1. 0410061689 dt. 1.9.2004 678253 / 3.9.2004 990 599.02 2004-05 2. 0410076231 dt. 16.11.2005 911283 / 17.11.2005 1000 152.29 2005-06 3. 0410087404 dt. 7.2.2007 394851 / 9.2.2007 and 403706 / 22.2.2007 990 (495 + 495) 368.08 2006 - 2007 & 2007- 08 Total for 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 MTs have been cleared against 1119.390 MTs alleged by department. It is also submitted that against the allegation that they cleared 599.02 MTs of soda, out of duty-free imported stock, to Ace Glass Containers, this is incorrect allegation. At best they would have transferred only 211.448 MTs and not 599.02 MTs out of the imported stock to Ace Glass Containers between 23.2.2005 and 10.3.2005. 2.6 The soda ash that was reported on duty payment basis was kept in the same storage area together with the imported duty-free soda ash as also the soda ash that was obtained on invoices from local glass manufacturers. Hence all the soda ash obtained from various sources had all got merged and the department cannot insist on first come first out ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority has made detailed analysis of the opening balance of soda ash, receipts of duty-free soda ash, closing balance of soda ash and arrived at the obvious conclusions regarding removals of imported duty-free soda ash. He further submits that Shri V. Jothi, General Manager cum Authorized Signatory of the appellant, in his statement, has admitted that they cleared a total quantity of 1119.39 MTs of duty-free soda ash to various persons from 10.12.2004 to 31.8.2007. 3.2 Ld. AR pointed out that as the duty-free materials have been imported vide Notification No.93/2004-Cus. and Notification No.43/2002-Cus., there is a stipulation of transfer / sale of raw material and hence any violation of such condition will require the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itely been removed by them, it is certainly not 1119.39 MTs as alleged by the department. We further note that the basis for working out the shortage is on the stock statement submitted by the appellants, during investigation, it is argued by the appellant is incomplete and lacking in stock/removal details. 5.2 In such circumstances, we thus hold it proper to remand the matter back to the adjudicating authority for denovo consideration and to arrive at the net quantity of duty free imported soda ash that may have been removed outside the factory for the limited purpose of calculation of net duty and without liability. Needless to say, the appellant shall be afforded a reasonable opportunity of presenting their case, including production of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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