TaxTMI 
TaxTMI 
2017 (11) TMI 140
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.... lesser Central Excise duty by wrongly classifying some of the products manufactured at their factory. It appeared to the department that (i) appellant had wilfully suppressed the manufacture and clearance of "CERA Mould Release Agent, "CERA Polycure W/R" to make themselves eligible to avail exemption under Notification No.9/2003-CE dt. 1.3.2003 in the following year by maintaining the total clearance within the Rs. 300 lakhs limit (ii) suppressed the clearance of samples through Delivery challans etc., (iii) cleared some of the excisable under trading invoices without payment of duty and (iv) suppressed the fact of consignment sales to M/s.Kay Pee Chemicals, Siliguri. Pursuant to investigations, show cause notice dt. 05.07.2005 was issued ....
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.... to the allegation that appellants have manufactured Polycure W. (ii) They have no infrastructure to manufacture the said product. The said product was only traded. He submits that the product Polycure W has been tested by the Central Institute of Plastics Engineering and Technology (CIPET) who have certified that the product was wax based. Along with reply to the SCN, they had given details of machineries available and used by appellant at their factory, copy of which has been placed in page 146 of the appeal book. (iii) If the relief sought for is extended, and payment of Rs. 6,40,000/- dropped, their turnover would be less than Rs. 3 crores for the year 2003-04 and they would be eligible for SSI exemption Notification No.9/2003. ....
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....il to May 2004, however department has taken the view that appellants have been manufacturing this product right from 2001. 5. The lower appellate authority in the impugned order has not elaborated on the grounds for upholding department's view that the said CERA Polycure had been manufactured by appellant; he only states that original authority had given clear and cogent finding on the issue. However, from the facts on record, we find that for a subsequent period, the very same issue has been dealt with by Commissioner (Appeals) in order dt. 02.06.2009 where the said authority has found that department has not produced sufficient evidence that the appellants had necessary machinery and that they had utilized raw materials produced; th....
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....ysis on the reasons why the items would not be classifiable under 3824.90. In view of the contentions of the appellants, we are of the considered opinion that the matter should be considered afresh and conclusions arrived at concerning classification merited would only after proper analysis and reasoning Needless to say the fate of the disputed tax liability will rest on the CETH classification that would be determined in such readjudication. So ordered. 8. Coming to the third issue, the dispute concerns 18 products which according to the appellant had been manufactured and originally cleared from the factory on payment of duty. It appears that department has taken note of the fact that goods have been clandestinely removed without account....