TMI Blog2001 (12) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... een filed by both the Appellants for condoning the delay in making the applications for continuance of proceedings under Rule 22 of the CEGAT (Procedure) Rules, 1982 in the name of the Official Liquidator. For the reasons mentioned in both the applications, the delay is condoned and both the applications are allowed. 3. Briefly stated the facts are that M/s. Petrofils Co-operative Ltd. manufacture polyester filament yarn (PFY) and low-oriented yarn (LOY). The Central Excise Officers visited their unit on 25-4-88, 4-5-88 and 5-5-88 which culminated in issuing a show cause notice dated 27-10-88 for demanding Central Excise Duty for the period from 1983-84 to 1987-88 and for imposition of penalty on the charge of manufacture and clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of RG-1 that they made use of the electronic weighing scale which was introduced in 1984; that electronic weighing scale is more accurate than the mechanical scale and as such there existed a difference between the DPR and RG-1. He, further, submitted that another reason for the discrepancy was the weight gain/loss in PFY/LOY due to application of coning oil; that during the texturising process, application of coning oil on the base yarn is necessary which gains weight after texturising due to oil pick up; that on the other hand during the process of draw twisting stage of LOY, there is a loss in weight due to moisture evaporation and losses like spin finish oil content reduction etc. from the yarn; that it is apparent from Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but surprisingly, no evidence has been brought on record as to whether the suppressed production has been utilized in captive consumption or there is any clandestine removal by M/s. Petrofils. He also mentioned that duty cannot be demanded on the basis of assumption and presumption as held by the Supreme Court in the case of Oudh Sugar Mills Ltd. v. U.O.I. - 1978 (2) E.L.T. (J 172). Finally he mentioned that on the same facts and for almost the same period (1-10-84 to 30-6-85), the Department had issued an earlier show cause notice dated 25-2-87 and Adjudication Order No. 14/89, dated 13-6-89 was passed by the Collector; that the Appellate Tribunal, vide Final Order No. 137/99-D, dated 9-2-1999 has set aside the Adjudication Order No. 14/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e when they worked under Physical Control; that moreover in the present matter the clearances were effected for captive consumption and hence the question of producing documents showing receipt and sales and delivery of goods did not arise; that in the present matter show cause notice was not based on assumption and presumption as it was based on the documents of the assessee seized/produced. 7. We have considered the submissions of both the sides. It has not been disputed by the Revenue that the percentage weight loss as determined during tests conducted from 30-5-88 to 2-6-88 were 2.18%, 2.61%, 1.99% and 1.91% which on average comes to 2.17%. Further the study conducted by Ahmedabad Textile Industries Research Association (ATIRA) has sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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