TMI Blog2008 (8) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Veeraiyan, Member (T) Shri Bipin Garg, Advocate, for the Appellant, Shri V.K. Agarwal, DR, for the Respondent. [Order per: M. Veeraiyan, Member (T)].- This is an appeal against the order of the Commissioner No. 13/RH/Adj/2004 dated 30-6-2004. The said order was passed by the Commissioner in de novo adjudication proceedings as per the directions of the Tribunal vide Order No. E/1302/97-B.1 dated 26-8-1997. 2. Heard both sides. 3. The relevant facts, in brief, are as follows: (a) The appellant is engaged in the manufacture of goods known as 'Oxygen lancing pipes'. The appellant wrote a letter dated 17-3-1994 to the Deputy Commissioner of Central Excise, Faridabad stating that they were purchasing steel tubes from tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) Before the Commissioner, they raised issues that the total turnover included figures relating to the goods traded/exported by them. However, it appears that they failed to produce any evidence in support of this claim. It also appears that they failed to produce any evidence about the purchase and duty paid nature of steel tubes, claimed to have been used for producing 'oxygen lance pipes.' (h) Commissioner vide impugned order dated 30-6-2004 (passed in pursuance to Tribunal order dated 26-8-97) confirmed duty amounting to Rs. 73,60,631/- and imposed equal penalty under Rule 173Q of Central Excise Rules. 4.1 The learned Advocate submitted that they purchased mostly duty paid tubes; redrew the pipes to required dimensions; such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Pushpam Pharmaceuticals Co. v. CCE, Bombay - 1995 (78) E.L.T. 401 (S.C.) Indian Oil Corporation Ltd. (Haldia Refinery) v. CCE, Kolkata-II - 2005 (191) E.L.T. 996 (Tri.-Kolkata) Gopal Zarda Udyog v. CCE, New Delhi - 2005 (188) E.L.T. 251 (S.C.) CCE C, Pune v. Vulcan Leval Ltd. - 1985 (22) E.L.T. 123 (Tribunal). 5.1 The learned DR draws our attention that the appellants did not cooperate by furnishing the relevant details even at the time of investigation in 1994. A remand order dated 26-8-97 was passed by the Tribunal leaving all issues open and with specific direction to consider the dispute whether the appellant manufactured using HR sheets or duty paid tubes. Tinder these circumstances, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orming to specifications of 'dimensions' which is a condition precedent; it is also subject to the condition precedent that inputs have paid duty; both the conditions should be fulfilled before availing the exemption. These have not been fulfilled, Therefore, he seeks upholding of the order of the original authority, 6. The learned DR submits that the Explanation to Notification No. 202/88 is a one time relaxation for all stocks of inputs in the country. In respect of the present case, the applicant is under obligation to prove that the input has paid appropriate duty. 7. We have carefully considered the submissions from both sides. At the outset, we find that the matter is before the Tribunal for the second time having been remande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the appellant to the eligibility of exemption under Notification No. 202/88- CE. dated 20-5-1988. The Notification is subject to two important conditions. The dimensions should be as specified in the said notification. The burden to prove that the dimensions are as specified is on the assessee who claims the benefit of the notification. This condition should be satisfied before the exemption can be allowed. The appellant has not been able to produce any evidence about their satisfying this condition. The other condition is that the inputs used for manufacture of the impugned product should be duty paid. The explanation deeming the duty paid nature holds that 'all stocks of inputs in the country' are deemed to be duty paid input ..... X X X X Extracts X X X X X X X X Extracts X X X X
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