2013 (8) TMI 841

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.... the proceedings initiated vide show cause notice dated 25-3-1997 raising duty demand to the tune of Rs. 37,260/- in respect of modvat credit wrongly availed. 2. Briefly stated the facts relevant for the disposal of the appeal are that respondents M/s. Naina Semi-Conductor Ltd., Haldwani are manufacturer of Diodes and Transistors classifiable under sub-heading 8541.00 of Central Excise Tariff Act, 1985. Their unit was visited by the team of Central Excise officers on 31-10-1996. During the course of physical verification, a stock of 90,000 pieces of "imported Diodes Cell Type un-marked" (besides other inputs), which appeared to be complete marketable diodes, was found. The respondent was asked to explain as to why he had not accounted to....

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....odes imported by the respondent were actually finished products but those were misdeclared by the respondent as semi-finished diodes in the declaration filed under Rule 57G of the Central Excise Rules, 1944. It is further submitted that the Commissioner (Appeals) also failed to appreciate that sample of diodes imported by the respondent was sent to Electronics Regional Test Laboratory (North), Okhla Industrial Area, Phase-II (ERTL) and as per opinion given in the test report, the diodes action was observed in the device VF:0.38V (approx.) which confirms that the diodes in question were not inputs for manufacture of finished product but the finished goods. In view of the above, it is submitted that the impugned order is flawed and is liable ....

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....-finished diodes. Thus, he concluded that cenvat credit was rightly availed by the respondent. The order-in-original also considered the test report pertaining to sample of semi-finished diodes of Electronic Regional Test Laboratory (North), NSI Laboratory, Okhla Industrial Area and found that the test report does not answer the basic question as to whether the seized "diodes cell type un-marked" conform to the characteristic of a finished complete diode capable of being used without further treatment of any sort and also as to whether the samples were finished diodes in itself used in relation to manufacture of final product. In view of the above, the adjudicating authority did not find contravention of provisions of Rules 51A, 57G, 57F(1)....