TMI Blog2005 (7) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... question, the appellants prayer for setting aside the impugned order is required to be upheld. Even on time-bar, the appellants have made out a strong case in their favour. The appellants were using imported wax and its use was within the knowledge of the department as is clearly borne out from the records. The Superintendent, by his letter dated 16-2-1999 had asked the appellants as to whether they were using any imported material. The appellants had clarified about the use and the department was aware of the use of this Wax in terms of the declarations and various correspondences they had with the department. The appellants' industry was also under control of the department. In the circumstance, it cannot be said that there are suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The department has proceeded to consider it as 'Raw Material' for denying the benefit. The appellants' contention is that in terms of the Board's Circular and clarification, if consumables are used, then they are not dis-entitled from the benefit of the Notification. The appellants have strongly relied on the experts' evidence from South India Textile Research Association (SITRA). The SITRA, in their report, have clearly indicated that the application of wax to a warp sheet is to improve its weaving performance. They also clarified that the same is not a raw material, but it is a consumable. One Shri B.P. Todankar, Senior Textile Technologist of the Bombay Textile Research Association has also, in his cross-examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants was within the department's knowledge as it was under physical control. The learned Counsel also refers to Apex Court judgment rendered in the case of CCE v. Ballarpur Industries Ltd.- 1989 (43) E.L.T. 804 (S.C.) wherein the Apex Court has clearly laid down that the test to consider a raw material is that it should be essential for the emergence of the desired end-product. He submits that in the light of this judgment, the yarn can be manufactured without wax and ultimately wax is also removed. In terms of the technical evidence produced, it has to be considered only as a consumable. They had been importing the same regularly from 1994 and there was no question of suppression of any fact in the matter. 2. The SDR contested the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. He also relied on Polyglass Acrylic Manufacturing Co. Ltd. v. CC - 2003 (153) E.L.T. 276 (S.C.) which lays down that reports obtained by department itself has greater force and it should not be ignored. He also relied on the judgment rendered in the case of CCE v. Maral Overseas Ltd. - 2004 (166) E.L.T. 498 (Tri.- Del.) wherein the Tribunal has held that when department has supervised the production including the receipt and issuances of duty free imported raw material from warehouse, then it cannot be said that there was suppression in the matter. Reliance was also placed on Ugam Chand Bhandari v. CCE - 2004 (167) E.L.T. 491 (S.C.) with regard to the bona fide belief held by the party in view of the departmental clarifications and Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/98-CX dated 5-5-1998 and Circular No. 631/22/02-CX dated 28-3-2002 clarifying that Consumables are not raw materials and its use will not disentitle the benefit of the Notification in question, the appellants prayer for setting aside the impugned order is required to be upheld. Even on time-bar, the appellants have made out a strong case in their favour. 4. The appellants were using imported wax and its use was within the knowledge of the department as is clearly borne out from the records. The Superintendent, by his letter dated 16-2-1999 had asked the appellants as to whether they were using any imported material. The appellants had clarified about the use and the department was aware of the use of this Wax in terms of the declarations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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