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2019 (5) TMI 505

..... HAT:- 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 cleared to them. The said test report can only be applied to the items 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 rep .....

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..... are also engaged in trading of calcium carbonate. During the investing at one of the buyer s premises, it was found that the Calcium Carbonate cleared by the appellant as uncoated Calcium Carbonate was found to be coated Calcium Carbonate . On the basis of said evidence, the revenue has sought the demand of duty on all their clearances treating them as clearances of coated Calcium Carbonate . 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 .....

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..... e exemption demand of ₹ 3,14,484/- was confirmed along with interest and penalty. The penalty of ₹ 20,000/- was imposed on Sh. R.N. Patel. The Revenue challenged the said order before Commissioner (Appeals). The Commissioner (Appeals) held that the description of traded goods in the purchase document and sale document was different. He pointed out that in these circumstances, it cannot 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 tra .....

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..... the appellant have cleared the coated calcium carbonate in the garb of uncoated calcium carbonate. It not disputed that the appellant manufacture both kind of calcium carbonate. The sample tested at the premises to M/s hexon, one of the buyers, show that the product cleared by the appellant as uncoated calcium carbonate was coated calcium carbonate . Thereafter statement of various buyers was 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 e .....

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