ORDER
Gorwi Shankar, Member (Technical)
1. The application by GKN Sinter Metals Ltd is for waiver of deposit of duty of Rs. 16.55 lakhs and penalty of equal amount, and the application by S.J. Mulye, its production manager is for waiver of deposit of penalty of Rs. 5000/-.
2. The applicant is a manufacturer of copper powder. Its counsel states that the copper powder is manufactured by first oxidising copper scrap and thereafter reducing the oxide to the metal. The notice issued to the applicant alleged that the goods described as “waste and scrap of copper” which it received from Amar Ferro Alloys, Thane, were of a kind which it could not make use of in manufacturing copper powder. The Deputy Commissioner confirmed the proposal in the notice and demanded duty and imposed penalty. The Commissioner (Appeals) has dismissed the appeal before him for failure to deposit the entire duty and penalty.
3. The main contention of the counsel for the applicants is that the description in the invoices issued by the supplier of the goods is broad enough to cover copper mill scale which is what is required by it for manufacture. He also points to the statement of Bhaskar Dalawade, laboratory assistant in the applicant’s factory, who analysised the samples from each of the consignments to the effect that what was received was sludge which refers to copper present in the oil liquid that has residue product copper wire rod.
4. The departmental representative contends that the contradictions between the statements of Mulye, who said that what was received was mill scale and the statement of Bhaskar, who said that what was received was sludge, itself renders neither of them acceptable in this case. He emphasised further the statement of 14.11.2000 Rajkumar Agarwal of Amar Ferro Alloys, who has categorically said that they did not supply to the applicant under cover of these 25 documents any mill scale or sludge or copper oxide. He therefore contends that this is a fit case for full deposit.
5. We do not prima facie find that the applicant has a case, in the light of the categorical averment of Rajkumar Agarwal that he did not supply any mill scale, copper oxide or sludge which the applicant has accepted were only three forms it required for its processes. There are contrary statement given by two employees of the applicant, Bhaskar, saying that what was received was sludge and Mulye saying that what was received was mill scale. The fact, which the counsel for the applicants emphasises, that the copper powder the applicant manufactured, during the period in question was claimed on payment of duty on it, does not seen to have any relevance as to what it received under the 25 documents. These were not the only documents under which they received the goods. It is at this stage difficult to exclude the possibility that it received other goods possibly without any invoices etc. It is not permissible for us to embark upon this wide ranging speculation at this stage. Financial hardship os not pleaded.
6. Accordingly, we take up the appeals themselves and order as follows. If the duty in question is deposited by the assessee within a month from the receipt of this order and evidence produced to the Commissioner (Appeals), the appeal before us shall stand allowed and set aside the Commissioner (Appeals)’ order, who shall hear and dispose of the appeals before him without insisting for any further deposit. In the event that this is not done, the appeals before us shall stand dismissed.