TMI Blog2018 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... hered some more precise evidences to prove unrecorded manufacture of copper ingots and sale of same. If there were excess sale of copper ingots other than what is provided in the statutory records of the appellant-assessee then some investigations should have been done to prove it but here the department has not even bothered to undertake any investigations on this side to prove that the assessee has manufactured and cleared certain quantities of copper ingots which are not recorded in the bookds of accounts - the charges of clandestine manufacture and clearance is not established on the basis of available evidences. There is no merit in demand of duty and same is not sustainable and accordingly the order in original is set aside - Since the demand itself is not sustainable on merit and therefore, question of imposition of penalties under Section 11AC of the Act on the firm and under Rule 26 of Central Excise Rules on the partners does not arise and thus, same are also set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No. 51695 - 51697 of 2017 - A/52626-52628/2018-EX[DB] - Dated:- 5-7-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. C L Mahar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to support their contention has not brought on record any such studies pertaining to the yield from the consignments of the scrap. A comparative study of like factories on this subject matter is required to be considered for coming to the right decision. Hence, we set aside the impugned order and remand the matter back to the adjudicating authority to have a comparative study from like factories and make estimation accordingly, but by providing a reasonable opportunity of personal hearing to the appellant. Additional evidence may be admitted, if need be during the course of hearing. Learned Counsel for the appellant assured full support to the lower authority. With the aforesaid direction, the appeal is allowed by way of remand. 4. In pursuance to the above order of this Tribunal, the matter has been re-adjudicated vide order-in-original dated 31.5.2017 wherein the duty and other penalties have been confirmed in toto. 5. It can be seen that this Tribunal in its order dated 16.11.2016 has specifically asked the Revenue to undertake comparative study of like factories on this subject matter before reaching the right decision. It was also expected as per the above o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copper scrap / copper scrap in respect of 16 consignments weighing 300.825 MT imported vide 5 Bills of entries from 10.9.2004 to 8.11.2004. The Central Excise officers also examined the raw material issue slips and plant segregation challan which revealed that average copper recovery from mixed copper cable scrap was 31.8% for the said 5 Bills of Entry. 7. We have heard the learned DR who has reiterated the findings given in the order-in-original. 8. We have heard the rival contentions. We are of the view that the while asking for the comparative study, this Tribunal had expected that the Commissioner would not confine himself to his own jurisdiction, he could have done the exercise of taking the relevant data of copper recovery from various kind of copper scraps from other units which are under the jurisdiction of other Commissionerate. So far as his observation as mentioned in preceding para 5 is concerned, it is to mention that recovery of copper from various kinds of scrap will always remain the same even after lapse of 13 years. Only adoption of some latest recovery technology may make some small variation in the recovery percentage of metal from the scrap. The above ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to literature - Zinc - The Science and Technology of the Metal, Its Alloys and Compounds authored by CH Methewson, Professor, Yale University, prepared with cooperation of the American Zinc Institute; and the Scrap Specifications Circular issued by Institute of Scrap Recycling Industries, Inc. saying that the conclusions mentioned in the show cause notice and in the order-in-original confirming the suppressed production and duty is not correct, considering the varieties of zinc scrap like Saves, Scabs, Scribe and so on used by the appellant. 6.1 Further the department has not gone beyond the approximation of yield which they have shown as 70 to 84% in col. 3 of Annexure-A attached to the show cause notice and average yield overall had been shown as 77.60% which has been made the basis for issuance of the show cause notice (SCN) as well as for confirming the duty of Central Excise by the impugned order dated 19-5-2009. The department confirmed the duty demand along with interest for the period of five years alleging suppression of clandestine removal of the final product and also imposed penalty mainly based on the production approximation and on the statement of Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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