Custom, Excise & Service Tax Tribunal
5. J.K. Khatri, Vice President vs Cce-Delhi-Iv on 29 October, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
R.K. PURAM WEST BLOCK, NO. 2, NEW DELHI-110066
Division Member Bench
Date of hearing: 29.10.2015
Date of decision: 4.12.2015
E/Misc/50076 and 51974 to 51977/2015 in
Appeal No. E/298 and 277 to 280/2012-EX[DB]
[Arising out of order-in-original No. 23/DM/ADJN/2011-2012 Dated 01.11.2011 and for Appeal No. E/298/2012 date is 27/10/2011 passed by Commissioner of Central Excise-Delhi-IV]
For Approval and Signature:
Honble Smt. Sulekha Beevi C.S., Member (Judicial)
Honble Shri B. Ravichandran, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
1. M/s. Century Metal Recycling Pvt. Ltd
2. Sh. Mohan Aggarwal, MD
3. Shri Tulsi Ram Yadav, Deputy Manager (PPC)
4. Shri Virender Kumar Rajpal, Earlier Working as
General Manager (Material)
5. J.K. Khatri, Vice President. Appellants
Vs.
CCE-Delhi-IV Respondent
Appearance: S/Shri K.K. Anand, Bipin Garg, Ms. Surbhi Sinha Advs. For the appellant S/Shri Govind Dixit, R.K. Mishra and Ramadhar DRs for the respondent Coram: Honble Smt. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 53718-53722/2015 Per: Sulekha Beevi, C.S. & B. Ravichandran The appellants are engaged in the manufacture of Aluminum Alloy ingots and Zinc Alloy ingots. The raw material used were aluminum scrap and aluminum ingots and they availed CENVAT Credit on these raw materials being inputs. The appellants imported the aluminum scrap and purchased Aluminum ingots from M/s. Bharat Aluminum Company (herein after referred to as M/S. BALCO) and M/s. Hindalco Industries Ltd. (hereinafter referred to as HINDALCO) and various other dealers. They were also doing job work of manufacturing aluminum Alloy ingots and Zinc Alloy ingots for their sister concern namely M/s. Grand Metal Industries Ltd. (hereinafter referred to as GMI)
2. The department entertained serious apprehension as under:
(i) That the appellants were engaged in fraudulent availment of CENVAT Credit by way of procuring cenvatable invoices in respect of inputs without actual receipt of those materials.
(ii) The scrutiny of ER-1 returns revealed a huge disproportion in the ratio of their cenvat uses and payment of duty on their finished goods as reflected in their PLA account vis-a-vis CENVAT account
(iii) That appellants had shown sale of abnormal quantity of Ash and Residue and burning loss amounting to more than 15% of the total consumption of raw material. Whereas the burning loss in similar process accounts to be 2-3% and Ash and Residue up to 5%. That, the cumulative wastage or burning loss cannot be more than 7-8%
(iv) That the appellants were taking credit on the basis of invoices issued from their sister concern, GMI, without actual receipt of goods. It was discovered that credit was taken by appellants on two invoices dated 24.6.2008 issued by GMI for amount of Rs. 6,58,815/- without actually receiving the goods/raw material by appellants. Upon such intelligence, a search was conducted in the factory premises of the appellant on 24.6.2008. The Central Excise Officers found one pen drive attached to the computer in the cabin of Shri Tulsi Ram Yadav, who was the Assistant Manager, Production Planning and Central (PPC). They resumed this pen drive and other documents under panchnama. Subsequently a search was conducted on the next day (25.06.2008) for the purpose of stock verification of raw material lying in the factory premises. Stock verification was done on daily basis and concluded on 4.7.2008.
3. After stock taking, it was found that a total stock of Aluminum scrap/ingot of 1082895 kgs. was lying in the factory premises of appellant. As per RG23A Pt. I (Daily Raw Material Register) the total stock of Aluminum scrap and CG ingots as on 25.6.2008 was 898091 kgs. Thus a stock of 184804 kgs of Aluminum scrap/ingots was found in excess. In addition other materials like Assorted Zinc scrap, SS Scrap, Non metallic material, High Zinc ingots all together weighing 204800 kgs was also found lying in the factory. The excess raw material was seized on 4.7.2008. On 31.7.2008 the officers again visited the factory and found that in addition to final products, chunks of aluminum dross was also emerging during the process of manufacturing. The appellants were further processing this aluminum dross by which different grade of dross namely champak, Mota and Barik was obtained. The loose unprocessed aluminum dross was weighed and found to be 40200 kgs. Also 49583.6 kgs of Barik dross, 11128 kgs of Chamak and 50997 kgs of Mota dross and 4185 kgs of Aluminum dross ingots were found unaccounted in records. These were seized on 2.08.2008
4. A show cause notice dated 28.11.2008 was issued to appellants proposing reversal of CENVAT Credit taken on two invoices issued by GMI, Faridabad; confiscation of raw material found in excess and seized; and confiscation of dross and dross ingots found unaccounted. Meanwhile the appellants moved the Honble High Court of Punjab & Haryana by filing CWP No. 14881/2008. The Honble High Court directed to return the amount of one crore deposited by appellants during investigation and directed the department to complete the investigation within one month. The department approached the Honble Supreme Court and while dismissing the SLP, the Honble Supreme Court observed that the department was at liberty to issue a further show cause notice if necessitated. A show cause notice dated 5.2.2009 was issued raising the allegation that the job workers have not returned some quantities of raw material to the appellant. Another show cause notice dated 17.3.2010 was issued which pertains to the present appeal. The said show cause notice dated 17.3.2010 issued invoking extended period of limitation proceeds on allegations raised mainly on five counts which are as follows:
(i) CENVAT Credit of Rs. 3,39,24,526/- on CG/EC ingots has been availed and utilized wrongly by the appellants as these CG/EC ingots (inputs) were cleared as such by appellants in a clandestine manner.
(ii) CENVAT Credit of Rs. 3,97,14,666 on sorted quantity from Aluminum scrap availed and utilized is inadmissible as these were removed clandestinely without issue of sale invoice.
(iii) CENVAT Credit of Rs. 1,08,68,346/- on Aluminum scrap availed and utilized is inadmissible as these were diverted by the appellant without issue of sale invoice or any accounting thereof.
(iv) CENVAT Credit of Rs. 7,40,68,846/- on the balance quantity i.e., 4427307 kgs of Aluminum scrap availed and utilized is inadmissible as these were sold unaccounted during the period April, 2006 to April, 2008.
(v) Appellants are liable to pay Central Excise Duty of Rs. 4,17,58,397/- on account of duty short paid on clearance of aluminum dross in the guise of ash and residue.
5. Before we proceed any further, it has to be stated that very little assistance was received from either side as neither the appellants nor Revenue was able to throw light on the entire documents and facts as presented by the case. Neither side made any comprehensive factual presentation, nor could answer satisfactorily when pointed questions were asked on reconciliation of data. This is very important as the impugned order is more than 400 pages long without sequential coherence and having over lapping findings with not so clear analysis of facts.
6. It would be worthwhile to give a brief over view of the fact and evidence placed before us. In this case all the statutory records were maintained correctly and there is no allegation of incorrect entries in the statutory records. The appellant was importing aluminum scrap (input) and was procuring aluminum ingots locally. Whatever figures were entered as inputs received as per bills of entry tallied with the statutory records and credit has been availed on such figures only. The appellants maintained RG23A Part 1 register for the purpose of showing receipt and issue of raw material, i.e., Aluminum scrap/CG/EC ingots used for manufacture. They were maintaining separate registers for raw materials used like Zinc, Silicon, Copper, Magnesium, Furnace oil. The appellants were showing their production and clearances of final product in RG-1 register.
7. According to the department, the figures for RG-1 register was provided by PPC department. This department used to maintain every data from the issue of raw material to the sale of final products. Such data was being maintained in a pen drive by the PPC department headed by Sh. Tulsi Ram Yadav, Assistant Manager of the appellant company. The said pen drive was resumed on 24.06.2008. The data contained in the pen drive was retrieved by the department and the above data reflected the day to day purchase, consumption of material, production of various finished and semi finished goods and sale. The case of the department is mainly based upon the data received from the pen drive and the statements recorded. The appellants admit the pen drive and its contents. According to them the pen drive did not contain any data other than that was disclosed in the statutory records. The appellants have started manufacturing activity w.e.f. 30.06.2006. They were availing CENVAT Credit on inputs which are basically aluminum scrap and aluminum ingots. Aluminum scrap is imported and aluminum ingots are procured indigenously. The basic raw material used by appellants for manufacture of Aluminum Alloy is Aluminum scrap. The entire aluminum scrap was imported. It is their case that they did not use indigenous aluminum scrap because only two types of aluminum scrap is available indigenously, i.e.., utensil scrap and wire scrap. Utensil scrap is not suitable for manufacture of aluminum alloy and wire scrap is costlier than the imported scrap. They imported mainly three types of Aluminum scrap as per ISRI specifications, i.e., Tense, Tait Tabor and Twitch. The process of manufacture started with the sorting and segregation of scrap to remove impurities. The segregated items were made into different batches after ascertaining the chemical composition of the scrap. In order to ensure that batches are not mixed up they were reclassified on the basis of chemical composition for being used. Copper, Zinc, Magnesium etc which were segregated from the scrap were used for making master alloys or used directly.
8. The appellants manufactured different types of Aluminum Alloy such as ADC12, HS1, AC4B, LM6, LM24, etc. Besides aluminum scrap, the appellant used CG aluminum ingots which were procured from Hindalco, Balco etc. The iron content in the CG ingots varied from 0.2% to 0.5%. CG ingots of high iron content of 0.4% to 0.5% was categorized as Dil. ingot and were used for diluting the alloys where higher iron content was permitted. CG ingots of high purity of 99.5% to 99.7% were categorized as EC/Fridge ingots and used for manufacture of alloy which required higher purity and low iron content.
9. They also manufactured Zinc alloys viz, Zamk 3 and Zamak 5 which contained 3 to 5% aluminum and rest zinc. Due to the considerable difference in melting temperature of zinc and Aluminum, the appellant used to manufacture zinc master alloys with 30% aluminum and 70% special high grade zinc in order to ensure uniformity of chemical composition while manufacturing. The making of Aluminum alloy required copper, manganese and magnesium. Due to the difference in melting temperature of these elements and aluminum, the appellant used to manufacture copper master alloy, magnesium master alloy, manganese master alloy etc. to ensure uniform chemical compositions. The manufacture of different types of master alloys were recorded in the statutory records and the same was then issued for manufacture of aluminum ingots by issuing invoices for captive use.
10. In the process of manufacture aluminum dross is formed due to oxidization which floats on the top of the melt bath. After cooling, they get the shape of big lumps and these lumps are subjected to pulverizing and remelting to extract the metal from the dross which is done captively or though job workers. After extracting the aluminum, the remaining quantity is disposed of as Ash and Residue, since the metal content is insignificant which is not viable for further metal extraction.
11. It is alleged by the department that the appellants were mis-declaring the imported aluminum scraps Twitch whereas in reality they were importing aluminum scrap zorba which is a restricted variety of scrap for import. Twitch variety do not contain more than 5% of free zinc, free magnesium etc. and may contain at least 95% of aluminum. On the other hand any scrap containing less than or equal to 90% aluminum is zorba variety. On overseas enquiry it was revealed that appellants imported zorba mis-declaring as Twitch in connivance with overseas suppliers. That arrangements were made with overseas supplier for supply of scheduled zorba Aluminum containing 83% to 86% aluminum and the rest other metals like Mg, Zn, CN, Brass, stainless steel etc. After sorting out the appellants induldge in clandestine removal of these metals without reversing credit. The data retrieved form pen drive revealed unaccounted receipt and issue of inputs. It also revealed that appellant was procuring Aluminum scrap from market, without accountal thereof and removing clandestinely high value goods like CG ingots, imported scrap by substituting zorba quality of scrap in their manufacture. They were clearing aluminum dross in the guise of ash and residue without paying duty. As the entire case of Revenue is based on the data received from pen drive for better appreciation of the discussion, the various excel files found in the data of pen drive and referred in the impugned order is noticed as under:
(a) Excel file Loss Monthwise-1 which contained five sheets namely Sheet-1, TOTAL, FURWISE, DIFF-7, and DIFF-8
(b) File RECON MONTHLY DROSS.xis which contained 14 sheets namely, April, May, June, July, August, September, October, November, December, January 2008, February 2008, March 2008, April 2008 and May 2008
(c) File name WITHOUT PROCESS DROSS RATE-XIS
(d) Files DAILY STOCK (April, 2008)-decrypted and Daily Stock (May 2008) decrypted which contained three sheets namely Received, issue and actual.
(e) File name Raw material classification VKS Sheet-1 which contained one sheet.
(f) File name HGS For June, 2008, MARKETING QUATATION FILE-decrypted.XIS (Sheet)ADC-12-A
(g) File Recon-PP (Physical adj 2005-06) Stock Reconcil April to December Stock Reconcil April to March, 2008 and 2009.
12. Besides the above, loose documents were also seized which included Daily Material Receipt and Issue Advices and Miscellaneous documents.
13. For the sake of convenience, we proceed to discuss and analyse each issue one after the other.
14. Issue No. 1Though appellant availed and utilized CENVAT Credit of Rs. 3,39,24,526 on CG/EC ingots, these ingots were not used in manufacture of final products but were removed as such clandestinely.
14.1 Case put forwarded by Revenue:-
During the period April, 2006 to May, 2008, appellants purchased 7851.640 MT of CG/EC ingots. As per the data obtained in the pen drive, it revealed that only 6145.759 MT of CG/EC ingots were actually consumed in the manufacture of final product. Out of the remaining quantity of 1705.881 MT of CG/EC ingots a quantity of 90.970 MT was found as balance (as on 31.5.2008) stated in Daily Stock sheet of pen drive. Therefore the balance of 1614.911 MT of CG/EC ingots has not been used in the manufacture of final products. Therefore CENVAT Credit of Rs. 3,39,24,526/- on these CG/EC ingots not used in manufacture of final products is not available to the appellants. It is also the case of department that these CG/EC ingots were removed clandestinely. The non-consumption of CG/EC ingots upon which credit was taken is evident from that data of consumption recorded in the pen drive of Shri Tulsi Ram Yadav, who is the Assistant Manager, PPC, of the appellant company. The appellant was not transparent in maintaining records. All the inputs whether imported or procured domestically, or ingots purchased from Hindalco, Balco etc were clubbed together in the Raw material register under the heading Aluminum. No records were intimated/presented to the department showing segregation of scrap, generation of dross. All these were maintained by PPC Section in the pen drive.
14.2 The data relating to the consumption of CG ingots was received from the pen drive in the excel file name LOSS MONTHWISE-1 (Sheet name TOTAL). The data of purchase of CG/EC ingots was taken from the purchase invoices. On 31.5.2008, the appellant had closing balance of 90.970 MT of CG/EC ingots as recorded in data of the pen drive. (excel file name DAILAY STOCK (MAY 08) Sheet name ACTUAL). On scrutiny of excel files namely DAILY STOCK (APRIL 08)- decrypted and DAILY STOCK (MAY 08) sheet name ISSUE it was found that from 31.12.2007 to 31.5.2008 the appellant had dispatched CG/EC ingots other than the quantity they had issued for the purpose of manufacture of final products. When the above quantity of dispatch of CG/EC ingots were to be matched with sale invoices issued by appellant it was found that appellant has not issued any sale invoices for sale of CG/EC ingots on these dates. For eg., as per excel file DAILY STOCK (April, 2008) Sheet Issue for the month of January, 2008 shows dispatch as follows:
13.01.2008 30 MT 14.01.2008 20 MT 15.01.2008 20 MT 16.01.2008 30 MT 28.01.2008 30 MT 30.01.2008 22 MT 14.3 But it was found that appellant has not issued any sale invoice for the sale of CG/EC ingots on the above dates. On scrutiny of the consumption data in the excel file LOSS MONTHWISE-1 it was found that the same were not used for manufacture of final product.
14.4 On the scrutiny of RECON MONTHLY DROSS (Sheet APRIL) it was found that appellant had sold 9548 kgs nd 8593 kgs of CG/EC ingots on 17.04.2007 and 18.04.2007 respectively. But no invoices were issued for the sale of ingots. That this corroborated the fact of clandestine removal of CG ingots. Similar evidence of sale/diversion of CG/EC ingots were found in DAILY MATERIAL RECEIPT ADVICE sheets of the documents resumed. To hide the fact of diverting/removing of CG/EC ingots, the appellants had devised a system to club the CG/EC ingots with the quantity of Aluminum scrap in their Daily Raw Material Register (RG 23A-Pt.1). On analysis of the data stored in pen drive it is found that appellant had a closing balance of 100 MT or less of CG/EC ingots everyday. Therefore, taking a standard of 100 MT of balance per day the data in Annexure-3 of show cause notice was calculated for the period (April, 2006 to May, 2008). As per this table, the appellant purchased 7851640 kgs of CG/EC ingots. As per the data of pen drive the consumption is 6145759 kgs only. The remaining quantity of CG/EC ingots were not actually consumed for manufacture. Therefore, a quantity of 1614.911 MT of CG/EC ingots (1705.881-90.970MT) was not consumed but was diverted by appellant. Therefore, the CENVAT Credit amounting to Rs. 3,39,24,526/- as detailed in Annexure-3 is not admissible to the appellants.
14.5 Submission on the part of appellant.
The department has completely failed to bring on record any positive evidence of clandestine removal of 1614.911 MT of CG/EC ingots. In the absence of any positive evidence regarding dispatch of the said quantity of CG ingots from the premises of the appellant, such as any statement of transporter to support the removal of CG/EC ingots from the factory, or the statement of any person alleging the purchase of any CG ingots from the appellant, or of any payment received for sale of such ingots, the allegation of clandestine removal of CG/EC ingots cannot be sustained. Whatever CG/EC ingots was purchased by the appellant, except the quantity which was sold as per bill and duly declared in ER-1 return, and the quantity shown as closing stock, the same has been consumed in the manufacture of final products. The department itself admits that the quantity of raw material consumed for the manufacture of final products for the period covered by the SCN completely tallies with the raw material issued as per RG 23A Part-1 maintained as per law. It is further admitted by department that the quantity of finished goods manufactured during the above period is found to tally with the quantity of finished goods entered in RG-1 register maintained for production and removal of finished goods. That the case of department is fully based on speculations, surmises and erroneous inferences drawn from the documents seized.
14.6 The appellant manufactures aluminum alloy ingots for which the inputs used are, viz Aluminum scrap, Aluminum CG/EC ingots, Silicon metal, Copper, other alloying elements like, Manganese etc. Aluminum scrap is mainly imported, and covered under ISRI Code namely Tense, Taint, Tabor, Twitch. The scrap will contain impurities and several alloying elements like silicon, copper, Magnesium, Manganese etc. The finished product comprises of aluminum alloys viz, ADC-12, AC4B, HS1, LM6 etc which have definite composition. The appellant has to ensure that the raw materials charged in the furnace has the correct composition which will result in the manufacture of the aluminum alloy ingot of desired specification. In case of any variation in composition of the finished product, the whole material charged which may vary from 6MT to 40MT may have to be rejected. It is therefore of critical importance to prepare each batch of the charge mix keeping in mind the composition of finished product.
14.7 It was necessary for appellant to keep a record of segregation of aluminum scrap and CG ingots on the basis of chemical composition. So also the data of generation of dross and under process material was to be maintained. For availing optimum use of raw materials, it was important to make a batch on the basis of linear programming software. For all these reasons, the appellant used to keep the aforesaid data on a pen drive which was maintained by the Production, Planning and Control (PPC) department, as it is this department of the appellant company which is to decide the optimum use of raw material. The said requirement could not have been kept in the statutory records as there is no requirement under the Act or the Rules to keep the said information in statutory records. That it was also not practical to keep the information in such records.
14.8 The scrap and CG ingots were segregated according to their chemical property both manually and by using machines. The segregated scrap is given to production department for melting and is further segregated depending on physical and chemical properties into various categories and record maintained. The CG ingots purchased from Hindalco and Balco are not uniform in their iron content. Therefore, this was also classified into different categories basing on their purity and composition. The appellant also made Zinc Master Alloy. The composition of this is 30% aluminum CG ingots and 70% special high grade zinc. During the period April, 2006 to May, 2008 the appellant had manufactured 828.853 M of Zinc Master Alloy which is reflected in the RG-1 register under the heading scrap melt. A quantity of 255.032 MT of aluminum CG ingots was consumed to make Zinc Master alloy taking melting loss @ 2.5%. This use of CG ingots is over and above the use of CG ingots for manufacture of aluminum alloy ingots. It is submitted that the excel sheet LOSS MONTHWHISE-1 would show that appellant has consumed the entire quantity of 7851.640 MT CG ingots procured from Hindalco, Balco and other dealers in the manufacture of aluminum alloy ingots except for 90.970MT which remained as closing stock and 29.739 MT which was sold on invoices and declared in returns. The net balance of 7730.937 MT was fully consumed in manufacture. The details of consumption and Reconciliation statement in reply to show cause notice is furnished by appellants as follows:
Quantity of CG ingots purchased 7851.640 MT Less closing stocking as on 31/5/2008 90.970 MT Less Trading sale 29.739 MT Balance quantity of CG ingots consumed 7730.931 MT
14.9 Out of 7851.640MT of CG/EC ingots consumed 643.012MT was reclassified according t o their iron content as D.ing (Dilution ingots) because the same was containing high iron. These could be used only for correction/dilution. The segregation of 643.012 MT of D.ing is supported by data of pen drive. Again as per data 4961.310 MT of dross was generated. Out of this 1853.243MT dross was processed by pulverizing to generate 1260.25 MT of dross which was directly used in manufacture of Aluminum ingots. It generated 593.08 MT of Ash and Residue. Out of the balance of 3108.067 MT of dross the appellant produced dross ingots both in house and by job work. The consumption of D.ingots is shown in data in the pen drive. The allegation of the department that though excel sheet showed consumption of 1915.661 of Dilution/dross ingots, the appellant was not producing any Dilution ingots is without basis. Appellant was producing dross ingots from under process material and being used in house, it was not necessary to maintain separate record. That therefore, the inference drawn by department that appellant had clandestinely procured 1669.490 MT of dross ingots locally is baseless. The production of Copper master alloy and manganese master alloy and other alloy using CG ingots is reflected in statutory records as scrap melt. The allegation that appellant diverted imported scrap and substituted with raw material purchased from local market is perverse as the value of high purity scrap in local market is very high and appellant would suffer heavy financial loss. The appellant could gain nothing by sale of CG ingots in market and procuring equal quantity of EC (W) and other ingots locally without bills.
14.10 In the Recon excel sheet contains Book, U, and Total, for all items viz, aluminum, silicon, copper and zinc. For aluminum, the department alleges u to denote as unaccounted raw material. But for other items like silicon, copper and zinc, the department has not taken any such objection. According to appellant u denotes underprocess. The entire demand on this issue is based on the assumption that appellant had procured huge quantity of raw material without bills, and had clandestinely removed a similar quantity of input material comprising of CG/EC ingots, high value items segregated from imported scrap. There is no evidence to establish the removal of such huge quantity of cenvatable inputs which cuts the root of the allegation.
14.11 The allegation that appellants imported Zorba misdeclaring the same as Twitch is not supported by any evidence. Though department conducted stock verification of the raw material from 25.6.2008 to 4.7.2008 no discrepancy was detected.
15. Issue No. 2Though appellants availed and utilized CENVAT Credit on aluminum scrap, a quantity 2366.119 MT of sorted saleable material was clandestinely removed from the total quantity of 9234.418MT of aluminum scrap imported and therefore CENVAT Credit of Rs. 3,97,14,666/- is not admissible.
15.1 Case put forward by Revenue On perusal of records it was found that appellant was selling elements like copper, Manganese, Zinc etc which were sorted from the aluminum scrap procured for manufacture of final products, without reversing the credit. The excel file RECON MONTHLY DROSS (Sheet April, 1) showed that several elements like Brass, Lead, Stainless Steel, Magnesium, etc obtained from sorting of the scrap was sold by appellants during April, 2007 which were shown as outgoing material in the sheet. The sale did not reflect in ER-1 returns of April, 2007. The appellants sold these without issuing any sale invoices. In the sheet EFF-STD-New, it was found stated the usable and saleable material after sorting out. The saleable impurities like the metals mentioned above come to 30.60% of the total quantity. The value of these saleable impurities was half the value of the container and therefore was profitable for appellants to sell these elements after sorting of the imported scrap. Further, the LOSS MONTHWISE-1 (Sheet TOTAL) did not show consumption of these sorted material which would establish that these were not used in manufacture of final product. As the sorted material was not found used in manufacture, or stocked in the factory the only conclusion possible is that these have been removed clandestinely without issue of sale invoices.
15.2 The appellants were engaged in import of Zorba variety misdeclaring it as Twitch variety of scrap out of which the appellants sorted out various metals which fetched them substantial amount. The appellants then procured aluminum scrap from local market and substituted ns the production of final product. That appellants have clandestinely thus removed 2366.119 MT from the sorted aluminum scrap and therefore credit of Rs. 3,97,14,666/- is inadmissible.
15.3 Submission on the part of the appellant.
The allegation of clandestine removal of 2366.119MT or any other quantity of material sorted out of aluminum scrap is completely baseless and without any material on record to substantiate or corroborate this. The department did not find any discrepancy in raw material in spite of complete verification of raw material. There is neither any evidence of sale of sorted out material nor any evidence of procurement of raw material for substitution. The appellants have filed manufacturing process by flow chart dated 1.4.2006. This chart shows that after procuring raw material the same is subjected to cleaning process and process of segregation which is done using machines and also manually. The appellant had sold after segregation, unusable items like, dust, dirt, rubber foam plastic, etc along with ash and residue paying applicable duty under Rule 8 of C.E. Rules. So also appellant has sold saleable quantities of segregated metals like stainless steel, magnesium scrap etc, on applicable duty. Iron and stainless steel recovered from furnace is sold as burnt iron on payment of duty. All these are reflected in RG-1 register. It is submitted that appellant used, copper, zinc, Manganese CU/BR Jali, Brass etc in the manufacture of aluminum alloy ingots also in production of master alloys.
15.4 Further, that if the appellant had removed and sold such huge quantity of sorted material without issuance of bill, the department ought to have found shortage in stock while verification of stock. The contention of the department that in order to cover the clandestine removal and sale of CG ingots, sorted material and duty paid aluminum scrap of about 8928.11 MT, the appellant procured 8680.483 MT material from market without bills comprising of zinc copper, manganese, titanium etc is incomprehensible to any reasonable person. It cannot be imagined that any person would clandestinely remove and sell sorted material like zinc, copper, manganese etc and again procure similar material from the local market without bills. The impugned order has been passed is absurd and without taking into consideration the reply of the appellants and is not sustainable.
16. Issue No. 3The appellant availed and utilized cenvat credit of Rs. 1,03,10,874/- on Aluminum Scrap of 6,98,393 kgs and the same was diverted without issue of sale invoice and without accounting. Therefore, the credit is not admissible.
16.1 Case put forward by Revenue:-
On scrutiny of the excel file DAILY STOCK (APRIL 2008)-decrypted and DAILY STOCK (May 08)-decrypted (Sheet-RECEIVED) along with their DAILY MATERIAL RECEIPT ADVICE sheets resumed it was found that appellants had not actually received CG ingots and aluminum scrap and this issue confines to aluminum scrap. It was found that appellants availed and utilized inadmissible cenvat credit without actual receipt of Aluminum scrap on the quantity of 698393 kgs. The data in the said sheets was available for the period from 1.4.2008 to 31.5.2008 only. The appellant had availed CENVAT Credit on the basis of documents only and prepared the MATERIAL RECEIPT ADVICE of these quantities without actual receipt thereof. The DMR resumed in the form of loose sheets showed hand written entries made on left side and also right side on the bottom of pages. So also against certain items there were tick mark whereas some items were marked with a cross. The demand on this count is calculated on two grounds (i) the raw material was not received as per above stated excel file of pen drive, whereas the same is seen entered in their statutory record involving credit of Rs. 37,33,320/- and (ii) the raw materials found ticked or struck off or cross in the DAILY MATERIAL RECEIPT ADVICE Sheets was not found received as per above excel files, whereas the same is seen entered in statutory records involving CENVAT Credit of Rs. 71,35,026. Thus the total demand being Rs. 108,68,346/-
16.2 Out of this Rs. 5,57,472/- quantity entered in excel file of Daily stock (April 08) and May 08 received tallied with entry in statutory record. Therefore, a credit of Rs. 1,03,10,874/- (i.e., 108,68,346-557472) was not admissible as this quantity though entered in statutory records was found either striked off or crossed or not ticked in the excel file DAILY MATERIAL RECEIPT ADVICE Sheets and also not found entered in the RECEIVED Sheets of the excel file.
16.3 Submission by Appellant The department has arrived upon entirely wrong conclusion on the tick mark, strike off mark etc seen made in the DAILY MATERIAL RECEIPT ADVICE (DMR). The PPC updates its stock sheet on daily basis and is shown in DMR. When raw material is received at the factory, it is checked by quality control department. When the items are cleared the Quality Control Department ticks the same as ? and items not cleared a cross mark W is given. The PPC department at the first instance only enters the quantities which have been directly cleared by Quality Control Department. Those that are not cleared are not yet available for production and are not entered in the stock maintained in PPC excel sheet. Items not cleared are identified as Hold board which is on top of the material. Subsequently, when these items are segregated it is mentioned by hand on right hand side bottom, and on the basis of this noting PPC enters in the stock account since they are now segregated and available for production. As regards hand written inscriptions on left side bottom of DMR, these are items which have been issued to production from under process stock. In case any material out of such has been sold, then proper sale invoices has been issued. For eg. on 5.4.2008, a quantity of 4860 kgs burnt has been hand written on left bottom side. This quantity has been sold to M/s. Mohbeen Ahmed by proper bill. That this would prove that if any item is sold proper invoice is issued, if any item is issued to production from under process stock, then the total stock is just reduced by that figure. The quantities entered in excel sheet on received were the quantities of scrap which were issued from RG23A Part 1 for production or transferred from cold refining department to production department. These quantities are included in the under process (u) column in the excel sheet. The quantity entered in RG23A Part-I register but not shown as received in excel sheet is because those quantities are not cleared by Quality Control Department. Therefore, the inference drawn by the Department that the difference between the quantities shown as received in RG23A Part-I and the quantities shown as received in excel sheet denotes the quantities not actually received by the appellant is without any basis or any evidence. The appellant having discharged the primary onus of having received the inputs as per bill of entry and entry in RG23A Part I, the onus is on the department to establish the non-receipt which is merely based on surmises.17. Issue No. 4
Though the appellant availed and utilized credit of Rs. 7,40,68,846/- on the balance quantity of 22,47,869 kgs of Aluminum scrap, the same has been sold/diverted/unaccounted without issue of sale invoices and that therefore the credit is not admissible.
17.1 Case put forward by Revenue:
Upon investigation it was found that appellants had clandestinely removed the non-usable materials from sorted out Aluminum scrap received in factory upon which credit was taken and they have not reversed the credit on such quantity. In two issues stated above a total quantity of Rs. 45,88,173/- kgs had been either removed clandestinely or not actually received in the factory. The evidence regarding the clandestine removal of sorted material from the Aluminum scrap are available in the excel file RECON MONTHLY DROSS (Sheet APRIL), DAILY STOCK (APRIL 08) (Sheet issued) and DAILY STOCK (Sheet MAY 08) (Sheet ISSUED). As per details given in the sheet TOTAL of the excel files, the appellant had shown 90,15,480 kgs of unaccounted sale (as reflected in column 4, besides the column Book in the raw sale) during the period April, 2006 to April, 2008. This quantity of 90,15,480 kgs unaccounted sale of raw materials included 45,88,173 kgs of the two issues stated above and the balance quantity is 44,27,307 kgs, which is the sorted material sold clandestinely. In these excel file u denotes unaccounted and figures in column u of the row in purchases contain the data of unaccounted purchases of raw material made by appellants. Therefore, it can be inferred that the row Sale and the column u against it denotes unaccounted sale of raw material made by appellants in respect of quantities entered in this column. That therefore the appellants have resorted to clearance of balance quantity of 4427308 kgs of Aluminum scrap sold unaccounted on which credit of Rs. 7,40,68,846/- was availed and utilized by them and is inadmissible.
17.2 Submissions by Appellant The allegation leveled against the appellant on this issue is that appellants removed 4427 MT of raw material clandestinely on which credit was availed. The department for its convenience has arrived at the conclusion that 9015480 kgs of raw material was received unaccounted. After deducting 45,88,173 kgs of which duty has been already demanded on the first two issues, the balance quantity of 4427MT is taken for raising this demand. On the very face of it, this allegation is absolute absurd since according to the department itself, there is no evidence for removal of 4427 MT or any part thereof. The department has mainly relied on the quantities shown in column u in the pen drive and the use of the words, purchase and sale in these excel sheets. It is submitted that the quantity of around 9000 MT mentioned under Column u in the pen drive is under process material like dross and rejections which was reused for production of finished goods. The appellant has reproduced the relevant entries in the appeal memo which is as under:-
Column u April 2006 to March, 2007` April, 2007 to March, 2008 April, 2008 to May, 2008 Total Receipt 263.40 6297.19 723.82 9664.41 Purchase Issue Sale 3044.12 5581.04 389.22 9014.38 17.3 This chart would make clear, that the expressions, purchase is for receipt and the expression sale is for issue. It does not denote purchase from outside or sale to any outside party. Receipt denotes, receipt of raw material by the production department for production and sale denotes issue of under process material or rejection etc for further processing. This has been explained in detail in the statements given by Sh. Mohan Aggarwal, Tulsi Ram Yadav, J.K. Khatri and V.K. Rajpal. In the process of manufacture, dross is generated and rejections also take place which have to be reprocessed and used again. Such under process materials cannot be entered in and shown as raw material issued in RG23A Part 1 register, because they have already been issued as per the register. Hence, the only way to keep account for such under process sheet was to put them under column u in the excel sheet. Again, the segregated scrap from the Cold Refining Sheet D when transferred to production department Sheet C, it was transferred as under process material and entered in Column u in excel sheet. That therefore, the case put forward by the department that Column U in the data of pen drive denotes unaccounted raw materials is not supported by any evidence.
17.4 The absurdity of the departments allegation is evident from the consequent allegation that the appellant procured practically the same quantity of scrap from the market for manufacture of final products. Items sold in the market includes, copper, brass, Magnesium, Lead PVC wire etc. It is further alleged that the sale of segregated items were made in cash only and this cash was used to procure local raw materials like H. Zn, Dross ingots, Ing 98, Local Twitch etc. The said case put forward is totally baseless as the appellant has demonstrated that dross ingots, Ing. 98, H.Zn etc were duly produced in-house as reflected from RG1 and RG23A Part-1 registers. Therefore the allegation that appellant diverted 4427 MT of sorted aluminum scrap and sold them without bills is an allegation without any sense.18. Issue No. 5
The appellants cleared aluminum dross in the guise of ash and residue and thus short paid duty of Rs. 4,17,58,397/-.
18.1 Case put forward by Revenue In the process of manufacture, aluminum dross is generated and these are categorized into three by the appellant according to their aluminum content. Chamak category has high percentage of aluminum, while Mota has 70% and Barik 45% of aluminum. Some of the dross, i.e., Chamak, Mota and Barik are sent by appellants to outside job workers who leach out the aluminum content to manufacture aluminum ingots or dross ingots. On investigation, it was found that the recovery of Aluminum from Aluminum dross by job workers was very high ranging from 46% to 76%. As per the statements it was found that the appellants not only used these aluminum/dross ingots in the batch to manufacture Aluminum alloy ingots, but also that they used the same in their correction process.
18.2 On scrutiny of data contained in pen drive it was found that appellants sold Aluminum dross without being shown in ER-1 as excisable goods. The quantities of sale of aluminum dross found handwritten on the loose papers seized matched with the sale invoices issued for Ash and Residue. The quantities of sale of aluminum dross for the month of April, 2007 exactly matched with sale of Aluminum dross in data of pen drive and these quantities tallied with the quantity of Ash and Residue shown sold as per sale invoices. This established that appellants are selling the Aluminum dross as Ash and Residue and evading payment of duty on Aluminum dross. The quantity of Aluminum dross sold for the period August, 2006 to May, 2008 was obtained from pen drive and the detail of Aluminum dross sold prior to August, 2006 was calculated on the basis of details of sale of Ash and Residue.
18.3 At the time of hearing, the learned DR was fair enough to concede that aluminum dross is not excisable as per the decision of the Supreme Court in 2006 (203) ELT (S.C) CCE Vs. Aluminum Co.
18.4 Submissions by Appellant The inference is drawn by department on the basis of generalization that the appellant had raised bill for sale of ash and residue. It is alleged that in fact appellant had sold aluminum dross at higher rate seen from hand written sheets at Page 51 to 53 of RUD 89. The department has calculated the differential amount of duty as Rs. 49,63,115/- on the total quantity of 54,09,335 kgs of ash and residue sold by appellant. This inference is wrong as it is not corroborated by any documents or evidence. The department has not mentioned from whom these loose sheets were resumed. The appellant through various statements has explained that the rate of dross noted in excel sheet was for the purpose of costing of the finished product and that it did not refer to actual sale of dross. During the period April, 2006 to May, 2008 appellant sold ash and residue to various job workers. After recovery of metal from dross, the remaining quantity of ash and residue was returned to appellant. Further, the department alleges that the entire quantity of ash and residue sold by appellant is aluminum dross and demand is raised for the same. This can never be correct from the process of manufacture production ash and residue has to be generated. In view of the decision laid by the Supreme Court in Aluminum Co. Ltd. (Supra), there is no duty liability on dross, and the demand is unsustainable.
19. We have heard both sides elaborately and perused appeal records.
20. We find that the department proceeded against the appellant to deny CENVAT Credit on various items and also to demand duty on the goods cleared by them. As mentioned by us earlier in this order that the analysis of facts and evidences both in the show cause notice and the impugned order is not sequential, comprehensive and clear. Even during the arguments, explanations sought for on specific issues were not forthcoming with any clarity. We find that the data retrieved from the pen drive was the main source of various allegations and later confirmation against the appellant. Large number of statements have been recorded which were selectively quoted to support the conclusions drawn by interpreting the data in the pen drive.
21. In this case, we find both the parties, namely, the Revenue as well as the appellant agree that data in the pen drive is the main source of the case and the appellant has not been disputing the correctness of the data in the said pen drive which is their private record maintained for planning and managing the various materials and the production inside the unit.
22. The main crux of the issue is the interpretation of these data. As per the appellant these private data are nothing but detailed accounting of various raw materials, their distribution for various use, in process materials and inter-departmental movements of various materials. The appellant strongly contended that their statutory records correctly reflect the receipt, consumption and closing balance of various items. The statutory records denote summary details whereas the private records contain various data for day to day management of supply and production and monitoring inside their unit. They have contended that there is no contradiction between the data contained in pen drive and those recorded in the statutory records.
23. We find that though the impugned order framed many issues for decision, only five deal with revenue aspects of demand. The other points are relating to extended period, penalty etc. We are considering each one of the Revenue points separately for decision.
24. The first issue for consideration is diversion and clandestine clearance of CG/EC ingots on which CENVAT Credit has been availed by the appellant. The total CENVAT Credit ordered to be recovered for the period April, 2006 to May, 2008 was on a quantity of 1614 MTs of inputs. The findings by the Learned Commissioner is based on the analysis of data recovered from the pen drive. We find that while relying on and interpreting the data recovered from pen drive, the original authority has made many sweeping presumptions. For example, to arrive at the quantity of diverted/clandestinely removed inputs, the Revenue followed the standard of 100 MTS of balance per day of CG/EC ingots and the calculations were extrapolated on such standard presumption and the alleged unaccounted quantity of inputs was arrived at. Annexure 3 of the show cause notice was totally accepted by the original authority without basing on any documentary evidence for clandestine removal. In fact, the original authority observes that the CG/EC ingots on which credit have been taken have been sold and as no sale invoice is prepared, the clearance is supposed to be clandestine. We find that the appellants have strongly contested the summary finding made by the original authority. They have submitted that out of the total quantity of 7,851/- MTs after deducting the closing stock and certain sale of inputs, the net balance of 7,713 MTs. have been fully consumed in the manufacture of aluminum alloy ingots. The reconciliation statement provided by the appellant from the data contained in the pen drive is as follows:
Quantity of CG ingots purchased 7851.640 MT Less closing stocking as on 31/5/2008 90.970 MT Less Trading sale 29.739 MT Balance quantity of CG ingots consumed 7730.931 MT Details of consumption (i) Consumption under the head CG ing. according to deptt 6145.748MT (ii) Quantity of CG/EC ingots included in D.ing in pen drive 643.012MT (iii) Consumption of CG/EC ingots shown as EC(W)/Fridge 400.025MT (iv) CG/EC ingot used in the production of CU-Master Shown in pen drive 123.544MT (v) CG/EC ingot used in production of manganese Master alloy shown in pen drive 35.338MT (vi)CG/EC ingots shown as N.Ing in pen drive 128.959MT (vii) Consumption of CG/EC ingots in production of zinc master alloy shown in pen drive 255.032MT Total 7731.658MT
25. On examining the rival contentions, we find that the original authority has not commented on the availability of CG/EC ingots as part of in process material in various stages of manufacture inside the appellants unit. The details of consumption of CG/EC ingots indicate that the said ingots are used for diluting, production of CU Master, Manganese Master and N-ing and Zinc Master alloy.
26. We find that apart from the failure of analyzing the various steps of process in the appellants unit, the original authority did not adduce any corroborative evidence like transport of these clandestine removals, the buyers details, financial transaction involved in diversion etc. We find the denial of credit based on interpretation of data in pen drive in a summary manner disregarding the statutory records is not legally sustainable. This view is supported by the total absence of any corroboration regarding sale and clearances of these inputs. We find the allegation of substitution of these inputs has also not been supported by any evidence.
27. The second issue is that after sorting the scrap, the appellant clandestinely removed 2366MT of scrap. The CENVAT Credit taken on this is denied. We find that the appellants have filed detailed flow chart of manufacturing process. The appellants have categorically stated that upon segregation of scrap the unusable items as well as segregated other metals like stainless steel, magnesium scrap were cleared on payment of duty. All these are reflected in the statutory record-RG-1 register. We find there is no supporting or corroborative evidence to sustain the allegation of the department for clandestine clearance of huge quantities of aluminum scrap without consumption in the unit of the appellant. No shortage of scrap was found on physical verification. Manufacture of accounted finished alloys would not be possible without use of these scrap. The departments contention is that to cover up diversion of scrap, local purchase of similar material has been made. Here again no evidence is put forth to support such contention. We find that summary allegation and findings in this regard cannot be sustained.
28. Next issue is on CENVAT Credit of Rs. 1,03,10,874/- which was denied on the ground of diversion of 698 MTs of aluminum scrap. This was based on certain loose sheets and some tick marks found in the private records. Here, again there is absolutely no corroboration of such diversion of cenvat availed scrap. No transport evidence, buyers details, money transportation etc. The private records are explained by the appellant. The tick marks and W marks are made by quality control department. Regarding hand written remark also, we find appellants explanation convincing and satisfactory. They have explained with illustration about sale of certain items and under process stock as entered in the statutory RG23A Part-I. The difference between private excel sheet and this statutory record has been explained by clearance or hold or certain sale, duly accounted for in the final statutory account. We find, either non-receipt or clandestine removal after receipt of any cenvatable raw material, has to be established by consistent corroborative evidence. We find no such evidence for this and the denial of credit is largely based on presumption and inference from private records. The details of private records were not denied by the appellant, rather they have explained the purpose of entries therein. We find no support for Revenues case on this issue.
29. The fourth issue is denial of an amount of Rs. 7,40,68,846/- as credit on the ground that some quantity of sorted out materials (out of imported scrap) and also scrap itself cleared without accounting clandestinely. It was alleged that in the private excel sheet the file U denotes unaccounted purchase or sale of raw materials. We find, first of all, there is overlapping of allegations regarding unaccounted clearance of sorted out materials and scrap by the appellant. The appellant submitted that U denotes under process materials like dross and rejections which were reused in the manufacture of final product. We find that the basis for denial of such substantial amount of CENVAT Credit on interpretation entry U in the private record is totally unsustainable and beyond reason. There is no other corroboration of such allegation of unaccounted transactions. Here, again it is not clear, if such huge quantities were diverted without accounting, how then can there be accounted production of given quantity of final product. The theory of substitution by local purchase remains only as a theory in the absence any evidence to substantiate the same.
30. The fifth issue is regarding clearance of aluminum dross in the guise of ash and residue resulting in short payment of duty. Here also, the allegation by the Revenue is based on data contained in the pen drive. The quantity of sale of aluminum dross was found handwritten in the loose papers which the Revenue alleges to match with the sale invoice issued for ash and residue. Based on such inference for the period August, 2006 to May, 2008, the short levy was projected for entire period including period prior to August, 2006. We find that the confirmation of demand on this ground also is not supported by any corroborative evidence for transportation, money transaction, etc. Further, the clearance of ash and residue if is to be considered as clearance of aluminum dross, the Revenue has to establish as to how the actual clearance of ash and residue was made. Therefore, we find the case on merit is not sustainable due to lack of evidence to establish the allegations. The demand is not sustainable on the main ground that aluminum dross not being an excisable goods as per decisions of Honble Supreme Court in the case of Indian Aluminum Company Limited reported in 1995 (77) ELT 268 SC and 2006 (203) ELT 3 SC. In a recent decision, the Honble High Court of Bombay in the case of Hindalco Industries Limited 2015 (315) ELT 10 (Bombay) examined the issue of duty liability of aluminum dross and after relying on the various decisions including the above mentioned decisions of the Honble Supreme Court held the product as not liable to excise duty.
31. Considering the above legal position, we find even if it is considered that the appellant have cleared aluminum dross, the duty liability on the same cannot be sustained.
32. Having examined each one of the points involving demand of duty or denial of credit as above we also arrive at certain general conclusions relevant to the case:
(a) As already stated, the whole case is built up on data contained in the pen drive and certain statements of persons. Admittedly, the data contained in pen drive is not disputed by the appellant. The whole dispute evolve on the interpretation of the data contained therein. In such a situation, it is necessary for the Revenue to support their interpretation by clear corroborative evidences and not by inferences and assumptions.
(b) Even in interpreting the data in the pen drive and taking some support from the select statements of persons, we find that the data applicable to a particular period was extrapolated for the whole period of demand by presuming a standard projection. This apparently is not legally sustainable.
(c) When the allegation of unaccounted clearances and substitutions of inputs of huge quantities were made, the minimum requirement is to have independent support of such allegation by way of evidence of transport, cash transaction, third party documents or affirmations etc. Here in this case, corroborations are lacking. We are aware that in the case of clandestine removal it is not required for the Revenue to prove precise and comprehensive details of each such clearances with 100 per cent accuracy. However, this does not mean that even in the total absence of corroborative evidence without at least establishing a preponderance of probability the case for confirmation of demands can be made.
(d) Large number of statements were recorded and also relied upon; but these statements were not put to test by way of cross-examination and analysis or supported by documentary evidence. The statements could be of help if they support evidences which exist and which requires re-affirmation. In the present case, the statements which deal with interpretation of data in pen drive have not thrown any substantial ground to the case built up by the Revenue.
33. Even though we agree with the argument put forward by the learned DR that the extent of proof required is not that as required in a criminal prosecution, but Revenue should be able at least to discharge the initial burden of establishing the charge which is totally absent in the present case. In appreciating the evidence placed before us we fully bear in mind that in clandestine clearance it will be humanly impossible to establish every link in the clandestine activity. Revenue in the present case has merely extrapolated and summarized figures without any evidentiary support. The list of cases which state that the findings of clandestine removal are to be required to be based upon strong evidences and not on assumptions and presumptions is un-ending.
34. In Suzuki Synthetics Pvt. Ltd 2015 (318) ELT 487 (Tri-Ahmd.), the Tribunal observed that if the case of clandestine removal is to be sustained based on private records then the same is required to be supported by corroborative evidence with regard to purchase of raw material, manufacture of final goods, flow-back of money or identification of the buyers and their statement etc. In Arya Fibers Pvt. Ltd. 2014 (311) ELT 0529 (Tri-Ahmd.) the Tribunal laid down certain principles, after detailed analysis of large number of case laws, to establish the case for clandestine manufacture/clearance. The Tribunal observed that there should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions. Similar ratio was followed in large number decisions by the High Courts and Tribunal - Siddh Industries-2013 (293) ELT 0556 (Tri-Ahmd.); Bansal Wires Pvt. Ltd.-2010 (26) ELT 1166 (Tri-Del); Arsh Casting Pvt. Ltd. 2010 (252) ELT 191 (HP), Pan Parag India Ltd. 2013 (291) ELT 0081 (Tri-Del), Jasmine Paints 2013 (287) ELT 239 (Tri-Del); Castrol India Ltd 2012 (283) ELT 399 (Tri-Chennai), Jaidev Alloys Pvt. Ltd.- 2012 (279) ELT 283 (Tri-Ahmd.)
35. Having considered the contentions of both the sides, we find that the analysis and findings in the impugned order cannot be legally sustained and as such the same requires to be set aside. Accordingly, we set aside the impugned order and allow the appeals.
(Pronounced in the open court on 4.12.2015) (Sulekha Beevi C.S.) Member (Judicial) (B. Ravichandran) Member (Technical) Ritu 36