TaxTMI 
TaxTMI 
2025 (2) TMI 1745
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.... document in view of the Section 38B of the Act and remanded the matter for de-novo adjudication. Aggrieved by said order, a Writ Petition was filed before the Hon'ble High Court of Karnataka in W.P(C) No. 27352/2011. The Writ Petition was disposed on the ground that Tribunal has remanded the matter, and all the contentions of the parties have been kept open to be urged before the Commissioner. Accordingly de-novo adjudication was conducted and as per the impugned order, Adjudication authority confirmed the demand of duty along with interest and penalty. Aggrieved by said order, present appeal is filed before the Tribunal. 2. When the appeal came up for hearing, Learned Counsel submits that the entire proceedings were initiated without any admissible evidence. As regards the activity of manufacturing, the process of cutting and polishing of slabs into tiles did not amount to manufacture as per the judgment of Hon'ble Supreme Court in the matter of M/s. Aman Marble Industries Vs. Central Excise, Jaipur (2003 (157) E.L.T 393 (SC) till 01.03.2006. 3. The Learned Counsel further submits that the Adjudication authority has wrongly concluded that Hindustan Marbles and Granites (HMG....
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....Excise, Jaipur h) 1999 (106) E.L.T. 12 (S.C.) - Hindustan Polymers Co. Ltd. Vs. Collector of C. Ex., Guntur i) 2006 (199) E.L.T. 711 (Tri.-Bang)-Vaspar Concepts (P) Ltd. Vs. Commissioner of C. Ex., Bangalore j) 2009 (242) E.L.T. 275 (Tri.-Bang)-Commr. of Cus., Bangalore Vs. Wipro Ge Medical Systems Pvt. Ltd. 5. Learned Counsel further submits that the justification given by the Adjudication authority that the valuation adopted as per Customs Valuation Rules, 1988 is as per the Tribunal order is also unsustainable, since there is no such direction that the value has to be determined in terms of Customs Valuation Rules, 1988. 6. The Learned Counsel further submits that as per the impugned order, Adjudication authority held that goods were mis-declared in the clearance documents. In this regard, Learned Counsel submits that the Appellant is an EOU. At the time of clearance, description and value are declared in the clearance documents. Thereafter goods are allowed clearance after assessment by officer posted in the unit. If there was any mis-declaration, the officer would not have allowed clearance. Further, Adjudication authority has recorded that def....
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....The Learned Counsel further submits that M/s HMG procures only 4% of their turnover from the Appellant and once it is cleared from the factory premises to HMG and once goods are sold to HMG at factory gate, DTA sale is complete and no presumption can be drawn that DTA sale were affected from HMG premises. The Appellant is not concerned in any manner with the disposal of the goods by HMG to adopt the price list of the HMG as admissible evidence. The Learned Counsel also draws our attention to the impugned order where the Adjudication authority has only held that the Appellant has not effectively discharged the burden. This is a subjective statement. Thus, it is admitted that the Appellant had discharged the burden cast on him and even if it is not sufficient for the subjective satisfaction of the Adjudication authority, no finding can be given that appellant has not effectively discharged the burden. The Learned Counsel further submits that the Appellant had declared the value as Rs. 45/sq.ft and said value was not rejected in accordance with law. The Learned Counsel draws our attention to the judgment of Hon'ble Supreme Court in the matter of M/s Eicher Tractors Ltd Vs. CC, Mumbai-....
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....ste marble slabs/rejected granites slabs. Adjudication authority relied on certain entries in the 'route card reports' and 'gang saw register' and concluded that the entire production was not accounted. On the basis of the above, Commissioner compared the clearance on payment of duty in the month of April, 2006 in the data given and on the basis of that concluded that number of granites and marble slabs cleared on payment of duty was 3358 slabs which if converted in to square feet comes to 201480 sq.ft by taking each slab as 60 sq.ft against the accounted and cleared slabs of 23283 sq.ft as per DTA register. On this basis the Learned Commissioner concluded that the difference of 178197 sq.ft remains unaccounted and cleared without accounting and payment of duty in the subsequent months. On this basis, duty of Rs. 1,65,45,521/- has been demanded and confirmed. In this regard, the Learned Counsel submits that the Adjudication authority presumed that every granites/marble block cut through the machine would result in perfect granite/marble slab. It is common knowledge that during processing of granites/marbles slabs apart from exportable slab, there will be non-exporta....
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....quals 10.764 sq. ft. is applied, the rate per sq. ft. would work out to Rs. 65/- per sq. ft. approximately. On this basis, the actual value adopted by considering 90.71% for undervaluation and on this basis the differential duty demand has been arrived at Rs. 4,49,04,401/- which is not sustainable in law. 12. The Learned Authorised Representative (AR) for the Revenue reiterated the finding in the impugned order and also relied on the decision of this Tribunal in the matter of M/s Noble Ply Vs. CCE, Calicut- 2009 (248) E.L.T 440 (Tri.-Bang) wherein it is held that suppression of value is once established, short levy to be determined based on the transaction value. As regarding production of the granite slabs making using of cutting machine, learned AR submits that as per the prevailing norms of Granite Cutting using Gang saw Machine, the standard Input/Output is governed by the established norms and Adjudication Authority has adopted the same. 13. Heard both sides and perused the records. 14. As regards the allegation of clandestine removal from EOU to DTA, the Adjudication authority reached the finding regarding clandestine removal based on the entry in gang saw register a....