DR. D.M. Misra, Advocate.
1. This is an application filed seeking waiver of pre-deposit of duty of Rs.42.42,925/- and equal amount of penalty imposed under Section 11AC of CEA, 1944.
2. At the outset, the Ld. Consultant Shri Bhattacharyaya for the applicant submits that during the period January, 2008 to March, 2008, Ferro Manganese Slag generated during the course of manufacture of Ferro Manganese. He further submits that the same were duly accounted for in their Daily Stock Account (DSA) and used in the factory in the manufacture of Silico Manganese falling under Chapter 7202.00 of CETA, 1985 and since there was no columns in the ER-1 during the respective period, requiring an assesse to show the opening balance (OB) and closing balance (CB), therefore, they did not mention its OB/CB in the respective Return. He has categorically submitted that this Ferro Manganese Slag have been duly accounted for in their DSA and subsequently used in the manufacture of Silico Manganese, also falling under Chapter 7202.00 of CETA, 1985. He has submitted that in absence of columns assigned to closing balance and opening balance, they could not mention in ER-I, the said data, but meticulously maintained in the DSA, the said data wherefrom it could be verified about the consumption of Ferro Manganese Slag. Demand has been confirmed against them solely on the ground that the quantity of 3677.87MT of Ferro Manganese Slag were cleared clandestinely during the period January, 2008 to March, 2008 as the same were not duly entered in their respective ER-I Returns.
3. Advancing his alternative argument, the Ld. Consultant submits that even assuming that the said Ferro Manganese Slag had not been used in the manufacture of Ferro Manganese goods, but it cannot dutiable being exempted vide Notification No. 4/2006-CE dated-1/3/2006 (Sl. No. 6).The Ld. Consultant further submits that even though they have made a specific averment before the Ld. Commissioner (Appeal) that the Ferro Manganese Slag arising during the course of manufacture of Ferro Manganese was exempted but no finding has been recorded by him.
4. Per contra, the Ld. A.R. for the Revenue reiterated the findings of the ld. Commissioner (Appeals).He submits that the applicant neither submitted the details of Daily Stock Accounts before the lower authority and also did not co-operate with the Department for conducting verification. He submits that the claim of the appellant that they are entitled to the benefit under Notification No. 4/2006-CE dated-1/3/2006, cannot be accepted in view of the fact that similar products were procured by them from M/s. Rohit Ferro, Judgepur, on payment of duty even though for subsequent period i.e. September, 2008 to October, 2008. He fairly accepts that this aspect has not been considered by the Ld. Commissioner (Appeals). Further, he has submitted that on analysis of the said Notification of 4/2006-CE dated-1/3/2006, it is clear that the product manufactured by the applicant may not fall under the said Notification being it is restricted to the manufacture of Iron and Steel, whereas it is not covering the iron and steel products. The Ld. A.R. for Revenue submitted that he has no objection in remanding the case to the Ld. Commissioner (Appeals) to consider all aspects of the case on merit.
5. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, and after waiving the requirement of pre-deposit, we take up the appeal for disposal. We find that the limited issue involved in this case relates to allegation of removal of 3677.87MT of Ferro Manganese Slag without payment of duty during the period Janurary, 2008 to March, 2008. It is the claim of the appellant that the said quantity even though not reflected in ER-I Returns, in absence of particular column earmarked for showing opening and closing balance, the same had been duly accounted for in their DSA. We find from the observation of the Ld. Commissioner (Appeals) that even though he had asked for the verification of the claim of the appellant, but the same could not be carried out due to non co-operation attitude of the appellant. Before us, the Ld. Consultant disputed the said observation saying that all co-operations had been extended to the Range Superintendent for verification of their record. Further, we find that the Ld. Commissioner (Appeal) has not recorded any finding on the claim of the appellant that the Ferro Manganese Slag is squarely covered under the exemption Notification No. 4/2006-CE dated-1/3/2006. The Ld. A.R. for the Revenue before us submitted that the said notification may not be strictly applicable to the present case for two reasons (i) the appellant themselves had procured duty paid Ferro Manganese Slag from the outsider availing CENVAT Credit and (ii) From a plain reading of the entry 6 of the said Notification, the products generated by the appellant, being not used in the course of manufacture of final product mentioned thereunder. We are of the view that these issues need to be examined by the Ld. Commissioner (Appeals). Both sides agree that the matter be remitted to the Ld. Commissioner (Appeals) for consideration of all issues afresh. Therefore, in the interest of justice, we remand the case to the Ld. Commissioner (Appeals) to decide all issues afresh. It is made clear that all issues are kept open. Needless to mention that a reasonable opportunity of hearing be given to the appellant. Appeal is allowed by way of Remand. S.P. disposed off.