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2019 (5) TMI 505

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..... s described identically or cleared under the same description to all other buyers. The test report does not show the exact description under which such goods were cleared. The evidence in the shape of test report can be applied only to the specific grade on which the testing was done. In respect of such product, the statements contradictory to the test report do not have any value. In respect of other item which were not tested, the statements becomes sole evidence. In such case the cross examination need to be granted before the same are relied in terms of Section 9D of the Central Excise Act, 1944. Ld. Counsel has further argued that the goods which the original adjudicating authority held to be traded goods on the basis of CA Certificate .....

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..... He argued that during the search at the factory premises, a large quantity of uncoated calcium carbonate was found in addition to the coated Calcium Carbonate. Ld. Counsel argued that the test report of sample tested at one of the buyer premise cannot be applied to all the sales made by the appellant to various other buyers. 2.1 He argued the appellant had sought cross-examination of Sh. Panna Ram, production in charge and authorized signatory of M/s. Alok Industries. He argued that earlier sh. Panna Ram had in his statement stated that by the June, 2008, the word coated was not used in description of goods in the invoices, however, after June, 2008, the invoices clearly described the goods as coated Calcium Carbonate . He pointed out that .....

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..... annot be held that the said goods were traded goods merely on the strength of CA Certificate. He also relied on the statement of Director and Manager and M/s Gayatri Fillers Pvt. Ltd to hold that certain processes is like pulverization were carried out on the goods purchases before the same are sold. On the above ground it was held that the value of traded calcium carbonate (treating them as manufactured goods) cannot be excluded from the assessable value. Ld. Counsel pointed out that Commissioner (Appeals) had only created a doubt regarding the nature of activity undertaken on the goods which they have traded. He argued that in merely because certain processes were carried out on traded goods and because name of the goods in purchased docu .....

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..... s recorded and most of them have admitted that they have received coated calcium carbonate . The Additional Commissioner in original adjudication has allowed cross examination of supervisory officer of one such person who had earlier admitted to have received coated calcium carbonate . On that basis the original adjudicating authority has excluded the entire clearances made to the said buyers from the total value. We find that the in view of hard evidence like test report, the statement and cross examination become secondary evidence. It is seen that the appellant have described each product by difference name. The material cleared to M/s Hexon, where the sample was tested, also would have contained specific name of the product which were c .....

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