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2014 (5) TMI 53 - GUJARAT HIGH COURTLiability to pay duty - Identification of Grey fabrics - Imported or not – No Reference of demand in Show cause Notice - Expert Evidence – Non-retracted statement of Director - Leviability of duty on the unit - 100% EOU or from some local traders - Illicit removal of grey fabrics – Not sufficient Evidence – Non-maintenance of separate record - Whether CESTAT is justified in holding that the Revenue has failed to establish from the documentary evidence that the grey fabrics were imported one and customs duty is liable to be paid, ignoring the material evidence being the statement of Director of the unit recorded u/s. 14 of the Central Excise Act, 1944 which has not been retracted by him at any point of time – Held that:- In the show cause notice, issued u/s 124, itself, the demand was made for the duty, interest and levying of penalty for having removed the material without payment of customs duty leviable thereon - Order-in-Original dealt with the contention raised by both sides with regard to the import of fabrics used in the material which was said to have been illicitly removed - Thus, both the adjudicating authorities found clear breach of Notification No. 53/97, dated 3-6-1997 r/w provisions of Customs Act - This was in violation of EXIM policy and procedures laid down under the Customs law where imported grey fabrics on payment of customs duty was to be necessarily utilized for manufacturing final products of processed MMF and the same was required to be exported. Tribunal held that the findings of the lower authorities were not based on evidence, while accepting the fact that for removal of goods in illicit manner and for selling grey fabrics in small quantities in the market, there could not be possibly any evidence available - It is required to be specifically mentioned that Tribunal noted that there ought to be proper documentation for 100% EOU taking out the goods - As seen from the orders of all the adjudicating authorities that the Order-in-Original and the order of Commissioner (A) relied on the evidences that have been adduced by Department and also depended heavily on the statement given by the Director who has not retracted the same till the date - What had further weighed with the authorities is the fact that there was no separate maintenance of record which would reveal either the material having been imported or having been procured from 100% EOU. Again the orders of both the authorities go to unfailingly suggest and as mentioned hereinabove, by way of clearly given findings that there was no such documentary evidence, however, if the Tribunal still found that the material which had been placed before the authorities was not sufficient for them to reach to the conclusion with regard to such material on such a specific finding of Tribunal, it could have remanded the matter back to the authority who passed the Order-in-Original for it to examine in greater detail instead of setting aside orders of both the adjudicating authorities despite strongly worded reasoning - Therefore, matter is remanded back to the authority who passed the Order-in-Original for fresh consideration – Order of CESTAT set aside – Decided in favour of Customs.
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