9911796707
TMI Blog2019 (11) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... and equivalent penalty. 1. Briefly stated, the facts of the case are that the Appellant is engaged, inter alia, in the manufacture and export of Polypropylene (PP) Bags and Twisting Yarn (the 'finished goods'). During the period April 2009 to March 2012, the Appellant had procured its principal input i.e. Polypropylene, from the following two sources : a) Imports from specified jurisdictions (Singapore/Saudi-Arabia) attracting Anti-Dumping Duty ["Imports from ADD Jurisdictions"] under S. No. 11 & 12 of Notification No. 82/2009 dated 30 July 2009 and 119/2010 dated 19 November 2010 (in short, ADD Notifications') without payment of the ADD and other duties of customs. b) Imports from other jurisdictions not attracting ADD including p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocurements from Non ADD jurisdiction as claimed, the Appellant should have discharged excise duty on DTA clearance of its finished goods under Sl. No. 3 of Notification No. 23/2009 as opposed to Sl. No. 2 of the said Notification. (ii) The register maintained by the Appellant was not in agreement with the table submitted by the Appellant in its reply as there were differences in the "issued to production" and "stock figures" between the register and the table (iii) Procurement of inputs from the Non ADD jurisdiction were less than the DTA clearance of finished goods made by the Appellant during the period 2009-10 & 2010-11. 3. The learned A/R appearing for the Appellant has assailed the Order-in-Original on the following grounds: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 - 12 960 6445.95 Table 'B'- Available Stock of Inputs from Non-ADD jurisdiction in excess of DTA clearances of finished goods Year Available Non- ADD Stock of Inputs (opening + pocurements DTA clearance of finished goods 1 Aug 2009 - March 10 1751 723** 2010 - 11 2112 1357 *Opening stock of PP on the date of introduction of ADD, not considered by the adjudicating authority in comparison **Wrongly taken as 1956 in the SCN for the entire year, when ADD itself introduced from 30 July 2009 (iii) The Appellant had discharged higher excise duty on the DTA clearance of its finished goods under Sl. No. 2 of Notification No. 23 as opposed to S. No. 3 thereof, which is available only if the finished goods are produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 723.68 MT only as evident from the Annual Performance Report filed with the office of the Development Commissioner. Further, Opening Stock of PP of 1063.40 MT as at the date of introduction of ADD i.e. 30 July 2009 duly evident from the stock register conveniently ignored while doing the comparison of non- ADD stock vis-à-vis DTA clearances during 2009 - 10 and 2010 - 11 leading to anomalous conclusion. 4. The Learned Departmental Representative supports the Order-in- Original and re-iterates the findings of the adjudicating authority. 5. Heard both sides and perused the appeal records. 6. We find that the crux of the issue involved in this case is whether the Appellant had utilised the inputs imported from ADD jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh with sufficient or appreciable evidence that the Polypropylene imported from ADD jurisdictions were used by the Appellant in the manufacture of finished goods cleared in the domestic market. 7. On perusal of the Annexure to the Notice, we find that the entire demand is based on the laws of averages/proportionate consumption basis and no other tangible or appreciable evidence has been adduced in support of the charge/levy. The adjudicating authority records that an issue register for Polypropylene procured from ADD jurisdictions was maintained by the Appellant but denies the contention of the Appellant of having maintained separate records, which is not well founded. Payment of excise duty on the finished goods under S. No. 2 of Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been considered and the stock of Polypropylene as at the date of introduction of ADD could not have been ignored in doing such macro-comparison. 8. We find that the ratio of the decision of the Hon'ble High Court in the Malwa Cotton Case extracted below and rendered specifically in the context of an EOU only, covers the case at hand for want of any appreciable proof or evidence to support the levy of ADD as the entire demand is based on assumptions and presumptions. "There was also no evidence on record to show that the respondent had utilized any part of the imported raw material and had got them cleared in the DTA. Thus, in the absence of any proof on part of the Revenue that goods for sale in DTA were manufactured out of the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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