Customs, Excise and Gold Tribunal - Mumbai
Sterlite Industries (India) Ltd. vs Commissioner Of C. Ex., Pune-I on 10 January, 2002
Equivalent citations: 2002(143)ELT669(TRI-MUMBAI)
JUDGMENT Gowri Shankar, Member (T)
1. The appellant is a manufacturer of aluminium sheets and foils. It is stated that it received some consignment of these goods that it sent out to buyers which were rejected by them for reprocessing. It is stated that it reprocessed and cleared these goods in terms of Rule 173H. The department was of the view that whatever cleared was not in fact reprocessed goods but goods that the appellant had freshly manufactured. It was reinforced in the belief that by the conclusion the goods that the buyers it returned were such as could not be remedied by falling short of manufacture. Notice was issued demanding duty of these goods and proposing penalty on the manufacturer. The Additional Commissioner confirmed the proposal in the notice. The Commissioner (Appeals) dismissed the appeal filed by the manufacturer. Hence this appeal.
2. The reason that the Commissioner (Appeals) advanced for rejecting the appeal was that the goods were subjected to processes in order to remove these defect amounted to manufacture. "The appellants have not clearly established that having regard to the nature of the finished goods which are purported to have been received back, the goods are capable of reprocessing, without subjecting the goods to fresh manufacturing process. The goods are aluminium foils and poly films. Looking at nature of goods, prima facie, it is unlikely, such so called defective/damaged poly films/aluminium foils can be subjected to reprocessing." He also finds that proper records required to be maintained under Rule 173H have not been maintained. Representative of the appellant contends that adjudicating authority has come to his conclusion which the Commissioner appellant adopts that the defects were so major as so amenable processes falling short of manufacture, only on the claims made by the original recipients of the goods. He points to the Additional Commissioner's order that the claim that the appellant had made with the buyers were investigated by its own personnel who sent reports indicating the nature of the goods. It is the defects that these persons pointed out that were remedied. As we have noted, the Commissioner (Appeals) has not come to a firm conclusion on this aspect and is calling his view prima facie. We are of the view that this should be examined more closely in the light of the submission that we have recorded.
3. We would like the Commissioner (Appeals) to apply his mind on this aspect and come to a clear finding. He shall do so and after hearing the appellant and considering the evidence it may produce in support of its contention, which the appellant undertakes to do within two months from the receipt of this order. The Commissioner shall also consider the plea of limitation which was made before him on which he has not given any finding.
4. Appeal allowed. Impugned order set aside.