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2016 (2) TMI 212 - AT - Central ExciseClandestine removal of cotton yarn in cones/cheese by mis-declaring the same as in PR Hanks - Wrong availment of benefit of exemption notification no.8/96-CE dated 27.03.1996 - the appellant mis-declared yarn produced by them as in the form of PR Hanks though they had manufactured and cleared the yarn in cone/cheese - also failure to maintain the record of manufacture of excisable goods - Held that:- The case for demand of duty based on the allegations of mis-declared clandestine clearance has not been supported by evidence and as such, we are not able to agree with the findings of the Original Authority as already narrated. The Original Authority himself appears to have confirmed the demand based on the “text of preponderance of probability” leading him “to the only possible conclusion that there has been misdemeanour committed by the party by surreptitious removal of dutiable cone yarn in the guise of exempted PR Hanks /yarns/”. On the question of time bar also, we find that the appellant have made out a case against the demand. They have been filing classification list declaration under Rule 173 B mentioning the nature of the product, rate of duty and the concessional notifications claimed by them. Investigation in the case started with the search on 25.03.2000. A show cause notice to confiscate the seized goods and to demand duty on the same was issued on 17.11.2000. Another show cause notice resulting in the impugned order was issued on 28.04.2003. This notice was issued invoking fraud, suppression, etc. for an extended period. Though the first notice was mainly relating to confiscation of the seized goods and to demand duty, there is nothing on record to show substantial additional evidence/facts have come into the position of the Department after issue of the first show cause notice resulting in the second show cause notice for the extended period. As such, we find that the impugned order cannot be sustained on the question of time bar also. In view of the above findings, we set aside the impugned order and allow the appeals. - Decided in favour of assessee.
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