AI Drafter 
TaxTMI 
TaxTMI 
2017 (9) TMI 71
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....me. During the course of manufacture of the cast articles, aluminium waste and scrap arises in the form of ash and residues falling under chapter sub heading No.2620. During the investigation it was observed that they removed the scrap under job work procedure under Rule 57F(4) and sent to M/s. Nizami & Co., Dharavi under Annexure II challans for refining so as to obtain aluminium in the form of ingots. On Annexure II challans two types of scrap were indicated Type 'A' where recovery was shown to be 65% and Type 'B' where recovery was shown to be 40%. After Analyzing the samples drawn on from the detained goods, the Dy. Chief Chemist C. Ex. Laboratory, Mumbai reported vide his report dated 20-11-1997 that the aluminium content as ob....
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....y of Rs.Rs.2,91,319/- was imposed under Section 11AC and Rs. 3,00,000/- under Rule 173Q, interest under Section 11AB was levied and personal penalty of Rs. 75,000/- was imposed on Shri. N.B. Khan, Proprietor of M/s. A Nizami & Co. under Rule 209A of Central Excise Rules, 1944. The appellant filed appeal before the Commissioner(Appeals), who once again vide order dated 26-12-2001 remanded the matter to the adjudicating authority for re-deciding as per his direction. The adjudicating authority in the second round of remand once again confirmed the demand along with penalties. Being aggrieved by the Order-in-Original dated 26-3-2009 appellant filed appeal before Commissioner(Appeals), who vide impugned order dismissed the appeal of the appella....
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....ted or removed clandestinely. The demand is on theoretical quantity where facts remain that entire goods sent, has been returned back. She submits that as regard the type -A, waste and scrap is of aluminium dropping and parts of small pieces of casting portions. Excess parts of castings get mixed with shop-floor dust and sweepings, which in turn contains lots of impurities and foreign matters in its composition. She submits that as per the report of Mr. Rajendra Hirve, Consultant/leading Metallurgist and authority on the subject, who carried out process audit by actually making the observations during the process of recovery at job-worker's premises at Dharavi, has observed that the dross essentially comprises of aluminium oxide from wh....
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....period till 11-5-2001, normal period of six months was provided under Section 11A, hence, the period beyond six months in the four SCNs is barred by limitation, in absence of the ingredients of fraud, suppression, willful mis-statement etc. with intent to evade payment of duty on the part of the appellants. She submits that Section 11AC and 11AB were brought on statute book on 28-9-1996 and the same would not be applicable for the period prior thereto i.e. for the period August 1993 till 27-9-1996, she relies on the following judgments: (a) Marcandy Prasad Ramakrishna Prasad [1998(102) ELT 705(T)] (b) Marcandy Prasad Ramakrishna Prasad(upheld by Hon'ble Supreme Court [1999(107) ELT A12(SC)] (c) Elgi Equipments Ltd[2001(128) ELT....
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....tion on the result of the test therefore considering test report both the lower authorities have correctly demanded the duty. 4. I have carefully considered the submissions made by both sides and perused record. 5. I find that in the present case the department has not made out any case of clandestine removal or any diversion of manufactured ingots either by the job worker or by the appellant. This fact has to be kept in mind while deciding the demand. Secondly as regard the test report, I find that both the cases the sample of 0.267 gms out of total sample 220 gms, the Ld. Commissioner(Appeals) in his order clearly observed that by taking such small quantity for deciding the correct result cannot be arrived at. In the present case al....